Young, C. v. S. B. Conrad, Inc. ( 2019 )

J-A09004-19
2019 Pa. Super. 227
CHRISTOPHER YOUNG, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
S. B. CONRAD, INC., SHELLY :
ENTERPRISES US LBM, LLC, J & S : No. 2501 EDA 2018
ELECTRICAL CONTRACTORS, INC. :
AND WILLIAM C. FISCHER :
PLUMBING & HEATING, INC. :
:
v. :
:
:
RRR CONTRACTORS, INC. :
Appeal from the Judgment Entered, September 20, 2018,
in the Court of Common Pleas of Philadelphia County,
Civil Division at No(s): 01029 December Term, 2015.
BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.
OPINION BY KUNSELMAN, J.: FILED JULY 25, 2019
I. Introduction
In this negligence action, Plaintiff Christopher Young appeals from an
order dismissing his claim against Defendant S.B. Conrad, Inc. Prior to seating
a jury, the trial court determined Mr. Young was a statutory employee of S.B.
Conrad under the Pennsylvania Workman’s Compensation Act1 (“the Workers’
Comp. Act”), as a matter of law. Thus, it held that S.B. Conrad was immune
from Mr. Young’s lawsuit and granted summary judgment in favor of S.B.
____________________________________________
1 77 P.S. §§ 1-2710.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Conrad on August 21, 2017. However, the trial court memorialized its order
on a trial worksheet that purported to enter a compulsory non-suit rather than
summary judgment.
Instead of immediately appealing as he could have, Mr. Young relied on
the trial court’s mischaracterization of its order as an entry of non-suit and
filed a post-trial motion to remove it. Because his reliance was reasonable,
we have jurisdiction over his appeal, even though it came in nearly a year
after the grant of summary judgment. We find, however, that Mr. Young failed
to preserve any of his appellate issues. Thus, we affirm.
II. Factual and Procedural Background
The case’s facts are largely irrelevant, because our disposition rests on
procedural grounds. Briefly, Mr. Young alleges he was an employee of RRR
Contractors. He also claims S.B. Conrad, Inc. contracted with RRR Contractors
for a building project. RRR Contractors assigned Mr. Young to work on that
project. In the course of his duties, Mr. Young fell two stories, suffered severe
and permanent injuries, and sued.
The week before trial, S.B. Conrad filed a motion for non-suit, claiming
to be Mr. Young’s statutory employer under the Workers’ Comp. Act, and it
asked the trial court to bifurcate that issue from the rest of the case. On
August 21, 2017, the trial court granted its motion, which the trial court said
it was treating as a motion for summary judgment. As the court explained
without objection from Mr. Young, “I think the preliminary step is to rule on
the submission of statutory employment, which I am looking at it as a motion
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for summary judgement, although I filed it as a pre-trial motion for
bifurcation.” N.T., 8/21/17, at 3.
There was a lengthy oral argument, where both sides treated the
employment-status question as one of law for the court. See id. at 3-19.
Indeed, Mr. Young’s attorney conceded that the issue was one of law:
THE COURT: I believe this is a decision, not something
that needed to be decided by a jury. That it deals with law.
PLAINTIFF’S COUNSEL: I agree with that.
Id. at 21.
After the trial court ruled that Mr. Young was a statutory employee of
S.B. Conrad, plaintiff’s counsel tried, for the first, to interpose a procedural
issue. His discussion with the trial court went as follows:
PLAINTIFF’S COUNSEL: Your Honor, I just, for the
record, I need to put this on the record to make sure the
Superior Court doesn’t say we don’t have a record.
S.B. Conrad failed to file a Summary Judgment
Motion, which I would have then had 30 days to produce
evidence as to why they have not met their burden. On
Friday and today, S.B. Conrad renewed the legal argument
that they are immune, not in the form of Summary
Judgment, but in a motion in limine. I then had the
afternoon of Friday to supply the Court with whatever –
THE COURT: And you had all weekend.
PLAINTIFF’S COUNSEL: I apologize. I thought you
wanted me to respond by the end of the day Friday.
THE COURT: I never directed you to do that. I asked this
question in the conference room, I said: Do I have
everything in front of me that I need to make a ruling? And
you specifically stated that I did.
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You said: [All the evidence that I needed was in the
documents that you] provided and based on that
representation I came in this morning with the
understanding that all sides were on the same page. That
based on the writing I was given, that I could proceed
forward.
[Defense counsel] said at that time, if you come in
Court on Monday morning and you think you need more, I
will have people from S.B. Conrad to supplement anything
that I have if you feel that need to.
Id. at 20 (emphasis in original).
Plaintiff’s counsel did not contest the trial court’s recollection of the off-
the-record conversation in the conference room, place an objection on the
record, or cite any procedural rule during the August 21, 2017 argument.
The trial court memorialized its decision in a form order, headed “Trial
Work Sheet,” on which the court placed an “X” next to “Non-Suit entered.”
August 21, 2017 Order at 1. Six days after receiving the notice of non-suit,
Mr. Young moved for post-trial relief, raising two claims of procedural error
for the first time. Nearly a year later, the trial court denied his motion.
Mr. Young appealed from that order twelve months after S.B. Conrad
received summary judgment. The prothonotary then entered judgment based
on the order denying Mr. Young’s post-trial motion.
III. Analysis
A. Timeliness of the Appeal.
Mr. Young waited almost a year to appeal an order that, by rule, was a
grant of summary judgment. We pause to consider our jurisdiction.
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“Tardy filings go to the jurisdiction of the tribunal to entertain a cause,
and thus cannot be lightly dismissed. The establishment of jurisdiction is of
equal importance as the establishment of a meritorious claim for relief.”
Robinson v. Pennsylvania Bd. of Prob. & Parole, 582 A.2d 857, 860 (Pa.
1990). “Although neither party has challenged our jurisdiction, we may
always consider that question on our own motion.” Kapcsos v. Benshoff,
194 A.3d 139, 141 (Pa. Super. 2018) (en banc). A jurisdictional issue presents
us with “a question of law; the appellate standard of review is de novo, and
the scope of review plenary.” Id.
Pennsylvania Rule of Appellate Procedure 903(a) mandates that “the
notice of appeal . . . shall be filed within 30 days after the entry of the order
from which the appeal is taken.” This Court “is without jurisdiction to excuse
failure to file a timely notice of appeal, as [the] 30-day period for appeal must
be strictly construed; [an] untimely appeal divests the Superior Court of
jurisdiction.” State Farm Fire Co. v. Craley ex rel. Estate of Craley, 784
A.2d 781, 785 n.5 (Pa. Super. 2001), reversed on other grounds sub nom,
Motorists Mutual Ins. Co. v. Pinkerton, 830 A.2d 958 (Pa. 2003).
In Rivera v. Home Depot USA, Inc., 832 A.2d 487 (Pa. Super. 2003),
this Court opined that, when the trial court and the parties should have treated
a pre-trial motion as one for summary judgment rather than for non-suit, the
losing party’s fling of post-trial motions should not be held against it. We
explained that a:
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problem occurs when the pretrial ruling is finally determined
shortly before trial and the parties are not careful in how
they proceed. Essentially, [the parties] neither go through
the formalities of a stipulated trial and have the trial judge
grant a compulsory nonsuit, nor file an oral nunc pro tunc
summary judgment motion and have that motion granted.
Here, since no testimony was taken, Home Depot’s
motion should have been characterized as a nunc pro
tunc summary judgment motion, and the trial court’s ruling
should have been to grant summary judgment, not a
compulsory nonsuit. Lewis v. United Hospitals, 692 A.2d
1055 (Pa. 1997) . . . However, we do not believe the Riveras’
filing of a motion to strike the nonsuit and waiting until that
motion was denied before appealing was improper and
defeats their right of appeal.
* * * * *
It is true that the trial court’s ruling should have been
considered a summary judgment ruling; however, it was
called the grant of a compulsory nonsuit. Under Pa.R.C.P.
227.1(3), the appropriate procedure after the entry of a
compulsory nonsuit is to file a written motion for post-trial
relief. That is what the Riveras did in this case.
Although the Riveras could have appealed directly
because the “nonsuit” ruling was improper, it was proper for
them to follow the procedure allowing the trial court to
correct the error. Once that motion was ruled upon, the
Riveras had 30 days to file an appeal, which they did.
Therefore, because the appeal was timely filed, we deny
Home Depot’s motion to quash.
Rivera, 832 A.2d at 490-491.
Like the Riveras, Mr. Young could have appealed directly from the order
purporting to grant a non-suit, because it was actually a grant of summary
judgment under Lewis, supra. But, because the trial court’s terminology in
its order erroneously dubbed the judgment an entry of non-suit, Mr. Young
was likewise free to give the trial court an opportunity to correct any possible
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errors through a post-trial motion. By giving the trial court that opportunity,
under Rivera, Mr. Young tolled the appeal-filing timeframe until the trial court
disposed of his post-trial motion.2
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2 But, see also Overnite Transp. Co. v. Teamsters Local 107, 779 A.2d
533, (Pa. Super. 2001), reversed sub nom., Overnite Transp. Co. v. Local
Union No. 107, 786 A.2d 173 (Pa. 2001) (holding that, like Rivera v. Home
Depot USA, Inc., 832 A.2d 487 (Pa. Super. 2003), when an appellant
erroneously files post-trial motions and the trial court erroneously entertains
them, this Court “will not penalize a party when its procedural errors are
shared equally by those of the trial court . . . Thus, because the trial court
treated the post-trial motions as proper under Pa.R.C.P. 227.1, we will accept
that treatment in this instance and treat the appeal as properly filed within 30
days of the denial of post–trial motions.”). Overnite Transport Co. petitioned
for allowance of appeal, and the Supreme Court of Pennsylvania summarily
reversed this Court’s assertion of jurisdiction.
The High Court explained, that “[t]he appeal below was untimely filed,
and there was no showing of fraud or a breakdown in the court’s operation to
permit entertaining the appeal. The Superior Court lacked jurisdiction over
the appeal.” Overnite Transp. II, 786 A.2d 173. We perceive a potential
conflict between Overnite Transp. II and Rivera.
However, the procedural posture of Rivera aligns with the case at bar
more closely than Overnite Transp. II, and this Court decided Rivera after
Overnite Transp. II. Even if Rivera – which made no mention of Overnite
Transp. II – was in error, this panel may not disregard it. See, e.g.,
Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1064 n.19 (Pa. Super.
2015) (noting that “it is beyond the power of a Superior Court panel to
overrule a prior decision of the Superior Court, except in circumstances where
intervening authority by our Supreme Court calls into question a previous
decision of this Court.”) Overnite Transp. II pre-dates Rivera and cannot
qualify as an intervening authority. Accordingly, if the Rivera Court
committed error, this panel is incapable of correcting it.
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We conclude that Rivera binds us. Because Mr. Young appealed within
30 days of the denial of post-trial motion, his appeal is timely.
B. The Jurisdiction of This Court and the Commonwealth Court
Also, this Court issued Mr. Young a rule to show cause why we should
not transfer his appeal to the Commonwealth Court of Pennsylvania. See
Superior Court Order, 9/14/18, at 1. We asked whether appellate jurisdiction
rests in the Commonwealth Court,3 as this appeal may involve that court’s
“special expertise in interpretation, application, and enforcement of the
Workers’ Compensation Act.” Id. at 1 (citing 42 Pa.C.S.A. § 742 and Wilson
v. Travelers Casualty and Surety Co., 88 A.3d 237 (Pa. Cmwlth. 2013)).
The Pennsylvania Unified Judicial System is unique from other American
appellate-court systems, because the others are based, more or less, on
territorial jurisdiction.4 In Pennsylvania, appellate jurisdiction focuses on the
subject matter and type of parties involved in the case. Entire classes of direct
appeals are within the exclusive, subject-matter jurisdiction of either the
Commonwealth Court or the Supreme Court of Pennsylvania, regardless of
where in Pennsylvania a case arose. See 42 Pa.C.S.A. §§ 722, 723, 725, 762,
763, 764. All other direct appeals fall within the residual, subject-matter
____________________________________________
3 We discussed our scope and standard of review for jurisdictional questions
in the previous section. Therefore, we need not reiterate them here.
4 In other systems, parties appeal to the intermediate appellate court having
jurisdiction over the place where the original case or administrative proceeding
occurred.
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jurisdiction of the Superior Court. See 42 Pa.C.S.A. § 724 (vesting appellate
jurisdiction over all unspecified subject matters in this Court).
Replying to our rule to explain why Commonwealth Court should not
decide this appeal, Mr. Young cites a list of cases where this Court interpreted
the Workers’ Comp. Act. See Young’s Response to Rule to Show Cause,
9/20/28, at 3-5. We find those cases to be more fitting than Wilson, which
had a lengthy litigation history. That case originated in the Bureau of Workers’
Compensation with two, related petitions seeking compensation on behalf of
Claimant Wilson’s late father. The matter reached the Commonwealth Court,
which enforced the Bureau’s order directing the employer to provide benefits.
But the employer refused to confer those benefits upon Ms. Wilson, so she
filed a praecipe for judgment based upon the Commonwealth Court’s decision.
The prothonotary complied. The employer then petitioned the court of
common pleas to strike that judgment. The trial court did, and Ms. Wilson
appealed to this Court. We transferred her appeal to Commonwealth Court
on several grounds, and Commonwealth Court denied her request to return
the matter to us.
Commonwealth Court explained that the issues on appeal concerned its
previous decision and administrative law because of:
the underlying fatal-benefits award . . . Further, the issues
. . . arise out of the ongoing workers’ compensation
proceedings involving the same parties’ rights to fatal-claim
benefits and are directly related to the issues disposed of in
this Court’s Memorandum Decision Ann Wilson and
James Wilson, Deceased v. Traveler's Insurance
Company and Allied Signal, Inc., 2008 WL 9406439 (Pa.
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Cmwlth. 2008). The issues also involve [Commonwealth]
Court’s review of the scope of [an administrative law
judge’s] award of fatal-claim benefits, and the interpretation
of the scope of [Commonwealth] Court’s July 8, 2008,
Decision and Order.
Finally, the underlying principles of workers’
compensation law are traditionally within [Commonwealth]
Court’s province. The appeal presents issues requiring
[Commonwealth] Court’s special expertise in the
interpretation, application and enforcement of . . . the Act.
Wilson, 88 A.3d at 245 (some citations omitted). Therefore, Commonwealth
Court agreed with us; it had exclusive, subject-matter, appellate jurisdiction
over Ms. Wilson’s case.
In the instant appeal, unlike Wilson, no party claims there was litigation
in the Bureau of Workers’ Compensation. Thus, there is no prior adjudication
from Commonwealth Court at issue. As such, the first two concerns found in
Wilson are absent here.
This leaves Wilson’s final point – i.e., that “the underlying principles of
workers’ compensation law are traditionally within [Commonwealth] Court’s
province.” Id. While this is generally true because most Workers’ Comp. Act
appeals are petitions for review filed in the Commonwealth Court, the Superior
Court does not simply transfer any case involving the Workers’ Comp. Act.
This is especially so where, as here, the Workers’ Comp. Act is a defense in a
tort action between private litigants. See, e.g., Gardner v. MIA Products
Co., 189 A.3d 441 (Pa. Super. 2018) (reviewing a trial court’s grant of
summary judgment in favor of an employer who successfully asserted its
immunity from a lawsuit based on 77 P.S. § 491(a) (“borrowed employee”));
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and Doman v. Atlas America, Inc., 150 A.3d 103 (Pa. Super. 2016)
(concluding that an employer was immune from suit under the statutory-
employer section of the Workers’ Comp. Act).
Moreover, the two issues in Mr. Young’s brief do not require us to apply
the Workers’ Comp. Act. See Young’s Brief at 5. Instead, they assert error
under the Pennsylvania Rules of Civil Procedure, over which Commonwealth
Court and this Court have coequal expertise. See id. We therefore conclude
that none of the subject-matter jurisdictional concerns of Wilson are present.
Thus, there is no reason for Commonwealth Court to exercise exclusive
jurisdiction over this appeal. It is therefore within our residual, subject-matter
jurisdiction under 42 Pa.C.S.A. § 745.
C. Preservation of Appellate Issues
We turn now to the issues in Mr. Young’s brief. They are:
1. Did the trial court err by granting a nonsuit before trial
without allowing Plaintiff to present evidence?
2. Did the trial court err by entering a nonsuit (a) without
stating that its Order was the functional equivalent of
an Order granting a Motion for Summary Judgment,
and (b) without specifying the bases for its decision to
grant summary judgment in its Opinion, thereby
precluding this Court from meaningfully reviewing the
trial court's decision?
Young’s Brief at 5.
As mentioned above, Mr. Young did not raise either of these issues to
the trial court until after a long argument on the merits of S.B. Conrad’s
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motion for non-suit.5 During that hearing, Mr. Young’s counsel never cited a
rule of procedure that he believed the trial court was misapplying. Instead,
he waited until the court ruled in favor of S.B. Conrad to bring up procedural
matters. See N.T., 8/21/17, at 20.
S.B. Conrad contends failure to interpose a timely objection is waiver.
It argues that Mr. Young “has waived any objection thereto by agreeing that
the matter was a question of law for the Court.” S.B. Conrad’s Brief at 7.
Additionally, we note that Mr. Young did not comply with Pennsylvania
Rule of Appellate Procedure 2119(e). That rule provides that an appellant’s
“argument must set forth, in immediate connection therewith or in a footnote
thereto, either a specific cross-reference to the page or pages of the statement
of the case which set forth the information relating thereto as required by
Pa.R.A.P. 2117(c), or substantially the same information.” Pa.R.A.P. 2119(e).
Under Pa.R.A.P. 2117(c), the appellant must include in his statement of the
case how and where in the record he raised waivable issues in the trial court.
Our appellate courts have long held that an appellate who does not
follow Pa.R.A.P. 2117(c) and Pa.R.A.P. 2119(e) waives the related issues due
to the defects in his brief. “[W]e deny relief on the ground that the issue is
waived, because Appellant has failed to demonstrate where in the record he
preserved this claim and our independent review discloses no
contemporaneous objection. See Pa.R.A.P. 2119(e) (requiring an appellant
____________________________________________
5Also, the trial court provided specific bases for deeming Mr. Young a statutory
employee of S.B. Conrad when he fell. See N.T., 8/21/17, at 17-19.
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to identify where in the record he preserved an issue for appellate review).”
Commonwealth v. Yandamuri, 159 A.3d 503, 528 n.23 (Pa. 2017). See
also, Victoria Gardens Condo. Ass'n v. Kennett Twp. of Chester Cty.,
23 A.3d 1098, 1107 (Pa. Cmwlth. 2011) (holding that, when an appellant “fails
to direct this Court to where this theory of recovery was raised before the trial
court as required by Rules 2117(c) and 2119(e) of the Pennsylvania Rules of
Appellate Procedure,” the issue was waived).
Mr. Young’s brief contains no references to places of preservation for
either issue he raises on appeal. And our independent review of the record
reveals none. We therefore agree with S.B. Conrad that Mr. Young made no
timely objections, based upon the Pennsylvania Rules of Civil Procedure, in
the trial court. Waiver results.
As the trial judge reminded plaintiff’s counsel:
I asked this question in the conference room, I said: Do I
have everything in front of me that I need to make a ruling?
And you specifically stated that I did.
You said: [All the evidence that I needed was in the
documents that you] provided and based on that
representation I came in this morning with the
understanding that all sides were on the same page. That
based on the writing I was given, that I could proceed
forward.
[Defense counsel] said at that time, if you come in
Court on Monday morning and you think you need more, I
will have people from S.B. Conrad to supplement anything
that I have if you feel that need to.
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N.T., 8/21/17, at 20 (emphasis in original). Plaintiff’s counsel offered no
disagreement with the trial court’s recitation of events from the previous
week.
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). Raising an issue for the first
in a post-trial motion is insufficient to satisfy the appellate rules. “[P]ost-trial
relief may not be granted unless the grounds therefor, (1) if then available,
were raised in pre-trial proceedings or by motion, objection, point for charge,
request for findings of fact or conclusions of law, offer of proof or other
appropriate method at trial.” Pa.R.Civ.P. 227.1.
Here, S.B. Conrad presented the trial court and Mr. Young with a motion
for non-suit prior to the start of trial. However, under Pennsylvania Rule of
Civil Procedure 230.1(c) that motion was clearly premature, because the trial
court may only “enter a nonsuit . . . at the close of the plaintiff’s case on
liability . . . .” Thus, the motion’s title put Mr. Young on notice that any
attempt by S.B. Conrad to have the court dispose of it pre-trial would be
procedurally incorrect.
Instead of objecting on those grounds, Mr. Young consented to the trial
court ruling upon the motion. Thus, he did not bring his claims of procedural
error to the court’s attention until after he had lost the motion.
The rules of procedure are not a fallback position after one losses on the
merits. If Mr. Young thought the trial court was misapplying the procedural
rules, he had an obligation under those rules to bring it to the court’s attention
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prior to agreeing that the court could decide the motion pre-trial, briefing the
trial court on it, arguing the matter at length in open court, and waiting for
the trial court to rule on the motion’s merits.6
Accordingly, we conclude that any procedural errors that occurred below
stemmed from Mr. Young’s willful acquiescence to them before and during the
August 21, 2017 hearing. For all of the foregoing reasons, he has waived his
claims of procedural error.
Judgment affirmed.
Judge Pellegrini joins the opinion.
Judge Murray concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/19
____________________________________________
6 Finally, we note Mr. Young never claims the grant of judgment as a matter
of law to S.B. Conrad was substantively erroneous. Nor does he indicate what
evidence he would reply upon to defeat summary judgment or that he would
adduce any additional evidence to supplement the record, were we to remand
this case on procedural grounds. Thus, even had we reached the merits of
Mr. Young’s issues, it is unlikely we would have found harmful error.
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