Carr, H. v. Michuck, R. ( 2020 )

J-S15027-20
2020 Pa. Super. 151
HAROLD E. CARR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RICHARD K. MICHUCK : No. 1562 WDA 2019
Appeal from the Order Dated September 19, 2019
In the Court of Common Pleas of Elk County Civil Division at No(s): No.
2013-591
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED JUNE 26, 2020
Appellant, Harold E. Carr, appeals from the September 19, 2019 order
denying his motion for leave to file a post-trial motion nunc pro tunc. We
vacate the September 19, 2019 order, as well as the May 18, 2020 entry of
judgment on the non-jury verdict, and remand the case with instructions.
This panel previously summarized the factual and procedural history as
follows:
The record reveals that on July 5, 2013, Appellant filed a complaint
in ejectment against Richard K. Michuck (“Michuck”) seeking title
to a triangular portion of land and use of a 10-foot right-of-way.
The trial court summarized the factual history of this case as
follows:
[Appellant] and [Michuck] own adjoining parcels of land on
the north side of [South] Michael [Road] in the city of St.
Marys, Elk County, Pennsylvania. At issue is the common
boundary on the easterly margin of [Appellant’s] parcel and
the westerly margin of [Michuck’s] parcel. [Appellant]
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* Former Justice specially assigned to the Superior Court.
J-S15027-20
claims ownership [of] a triangular parcel of land along the
aforesaid boundary by virtue of what [Appellant] alleges to
be an erroneous call of 36° rather than 38° [in the boundary
description]. [Appellant] claims that his correct boundary
description is set forth in a “recent survey by Curry &
Associates”, and sets forth the survey description at
paragraph 5 of the complaint. [Appellant] alleges in
paragraph 6 [of the complaint,] “The erroneous calls of
‘North 36° East’ and ‘South 36° West’ in [Appellant’s] deed
[] resulted in an overlap of [Appellant’s] eastern boundary
and [Michuck’s] western boundary[.]
Trial Court Opinion, 10/6/15, at unnumbered pages 1-2. For ease
of understanding, a depiction of the property in question is
reproduced infra.
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An amended complaint was filed [on] January 23, 2014, to which
Michuck filed preliminary objections in the nature of demurrers.
Appellant subsequently filed a second amended complaint.
Michuck filed preliminary objections in the nature of demurrers to
Appellant’s second amended complaint. On October 6, 2015, the
trial court overruled Michuck’s preliminary objections and directed
Michuck to file an answer to Appellant’s second amended
complaint within 20 days. A non-jury trial was held on February
15, 2017.
On July 15, 2019, the trial court entered a verdict in favor of
Michuck and dismissed Appellant’s second amended complaint
with prejudice. Appellant did not file a post-trial motion and
neither party filed a praecipe for entry of judgment. On August
14, 2019, Appellant appealed the July 15, 2019 verdict.
Appellant’s notice of appeal was docketed with this Court at 1251
WDA 2019. In an August 23, 2019 per curiam order, this Court
determined that Appellant waived all issues on appeal because he
failed to file a post-trial motion.[1] Consequently, this Court
dismissed Appellant’s appeal sua sponte without prejudice to seek
permission from the trial court to file a post-trial motion nunc pro
tunc.
On August 28, 2019, Appellant filed a motion for leave to file a
post-trial motion nunc pro tunc. On September 19, 2019, the trial
court denied Appellant’s motion to file a post-trial motion nunc pro
tunc. [On October 17, 2019,] Appellant appealed the September
19, 2019 order.
Carr v. Michuck, 2020 WL 1867356, at *1 (Pa. Super. Filed April 14, 2020)
(unpublished memorandum). We quashed Appellant’s October 17, 2019
appeal on the grounds this Court lacked jurisdiction because the judgment on
the non-jury verdict was never entered on the trial court docket. Id. at *2.
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1 We acknowledge that the August 23, 2019 per curiam order was entered in
error as this Court did not have jurisdiction over the matter due to Appellant’s
failure to praecipe for entry of judgment on the non-jury verdict prior to filing
his notice of appeal.
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Appellant filed a praecipe to enter judgment, and the judgment on the
non-jury verdict was docketed on May 18, 2020. Appellant subsequently filed
an application with this Court to reinstate the October 17, 2019 appeal. In a
per curiam order, this Court reinstated the appeal at docket number 1562
WDA 2019.2 Per Curiam Order, 5/26/20.
Appellant raises the following issue for our review:
Did the trial court abuse its discretion and commit an error of law
when it denied Appellant's motion for leave to file [a] post-trial
motion nunc pro tunc and simultaneously granted [Michuck’s]
motion to strike:
(a) without holding any hearing or argument despite the
request of both parties that [the trial court] do so;
(b) without providing an opportunity for Appellant to
respond in any way to [Michuck’s] motion to strike;
(c) without resolving factual disputes as to when the order
of July 15, 2019, was actually received by Appellant's then
counsel of record;
(d) despite the fact that counsel has at all times moved
expeditiously and without delay to bring claimed errors to
the trial court's attention;
(e) despite the fact that the [trial c]ourt's July 15, 2019[]
opinion fails to clearly settle the respective and continuing
property rights of either party and may well impact the
property rights of others; and
(f) for the reasons set forth in paragraphs 9, 10, 12, 13, 14
and 16 of Appellant's motion for leave to file [a] post-trial
motion nunc pro tunc[?]
Appellant’s Brief at 4 (extraneous capitalization omitted).
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2 Appellant and the trial court previously complied with Pa.R.A.P. 1925.
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In sum, Appellant claims the trial court erred in denying his motion for
leave to file a post-trial motion nunc pro tunc, for which our standard of review
and scope of review are well-settled. “We review the trial court's denial of
Appellant's motion for leave to file post-trial motions nunc pro tunc under an
abuse of discretion standard.” D.L. Forrey & Assocs., Inc. v. Fuel City
Truck Stop, Inc., 71 A.3d 915, 918 (Pa. Super. 2013), citing Lenhart v.
Cigna Cos., Inc., 924 A.2d 1193, 1195 (Pa. Super. 2003). The trial court is
vested with broad discretion to permit a post-trial motion nunc pro tunc, and
this “Court has consistently refused to entertain appeals from orders or
verdicts following non[-]jury trials in actions at law when no post-trial motions
have been filed.” Lenhart, 924 A.2d at 1195-1196 (citations omitted). The
trial court may grant nunc pro tunc relief: (1) where the appellant
demonstrates that a late filing was the result of non-negligent circumstances,
that the request for nunc pro tunc relief was made shortly after the relevant
deadline passed, and that relief would not prejudice the other party; (2) where
a breakdown in court operations occurred; or (3) where fraud has been
established. Vietri ex rel. Vietri v. Delaware High Sch., 63 A.3d 1281,
1284 (Pa. Super. 2013); see also Lenhart, 924 A.2d at 1196 (explaining that
the failure to file a post-trial motion must not stem from counsel’s negligence
or from a failure to anticipate foreseeable circumstances). 3
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3This Court often looks to cases involving the denial of a motion to file a notice
of appeal nunc pro tunc to determine what constitutes an abuse of trial court
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Here, Appellant contends his trial counsel notified him, in a letter, that
the trial court rendered a verdict on July 15, 2019, more than two years after
the conclusion of the non-jury trial, and that trial counsel’s notification letter
was dated July 22, 2019, only three days before the deadline for filing a
post-trial motion.4 Appellant’s Brief at 14. Appellant avers that in the
notification letter, trial counsel further informed Appellant that he was unable
to represent Appellant in a subsequent appeal. Id. Appellant asserts that he
first approached appellate counsel “no earlier than August 6, 2019, long after
the [Pa.R.Civ.P. 227.1(c)(2)] deadline expired.” Id. (emphasis in original).
Appellant contends that appellate counsel needed appropriate time, inter alia,
to order the transcripts and review the record to determine if a post-trial
motion was appropriate. Id. at 16-17. Appellant claims that the trial court,
in denying his motion for leave to file a post-trial motion nunc pro tunc, failed
to find that non-negligent circumstances led to the late filing of a motion for
leave to file a post-trial motion nunc pro tunc, the motion for leave to file a
post-trial motion nunc pro tunc was filed in a diligent and timely fashion under
the unique procedural circumstances of the case, and the filing of a post-trial
motion nunc pro tunc would not prejudice Michuck. Id. at 11-20.
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discretion in the context of denying a motion for leave to file a post-trial
motion nunc pro tunc. Lenhart, 924 A.2d at 1196 n.3.
4 Pennsylvania Rule of Civil Procedure 227.1(c)(2) requires a post-trial motion
to be filed within ten days after the decision in a non-jury trial. See
Pa.R.Civ.P. 227(c)(2).
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In denying Appellant’s motion for leave to file a post-trial motion nunc
pro tunc, the trial court explained,
[Appellant’s] trial [counsel] was still counsel of record long after
the verdict was entered but did not file post-trial motions on his
client's behalf. He was certainly in a position to do so. Whether
or not he only received his physical copy of the [trial c]ourt's
[verdict] on July 22, 2019, he was, as [Michuck] argued,
intimately familiar with the case and well able to file post-trial
motions - even if only [in a preliminary format subject to later
amendment.] He simply chose not to.
According to his motion, [Appellant] then engaged [appellate
counsel] "for the purpose of an appeal." At that point, eight days
remained before his appeal period expired, which was more than
enough time to request leave from [the trial court] to file post-trial
motions nunc pro tunc and then file a direct appeal if the [trial
court] either denied the motion or failed to respond.[5] Counsel
waited until August 13, 2019, to enter his appearance, though,
which left him only [two] days to file a notice of appeal. That,
once again, was not a breakdown in the [trial] court's operations;
it was an attorney not acting in a timely fashion prescribed to
preserve [Appellant’s] appellate rights by following the procedures
prescribed by Rule 227.1.
[Appellant] had nearly four years from the date he filed his
complaint until the matter went to trial - four years to marshal the
evidence he needed to sustain his claim. When it came time to
prove it, though, the evidence he adduced was insufficient. That
was the [trial court’s] conclusion, which it reached after affording
[Appellant] a full and fair opportunity to present his case, which
is to say that he was not subject to a summary dismissal or
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5 A party seeking to file a notice of appeal must first file a praecipe to enter
judgment on the non-jury verdict and the judgment must be entered on the
docket with appropriate notice of the same by the prothonotary to the parties.
It is only after entry of judgment and notice of the same to the parties that
this Court has jurisdiction to review the merits of an appeal. See Johnston
the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 514 (Pa. Super.
1995) (en banc) (stating, entry of judgment is a prerequisite to the exercise
of this Court’s jurisdiction).
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otherwise put out of court before he had the chance to take full
advantage of the adversarial process in this matter.
[T]he [trial c]ourt's verdict left intact the property scheme that
had long been established and had apparently proven
unproblematic until [Appellant] decided in 2013 that he was going
to try to get a little bit more. The problem for [Appellant],
therefore[,] is not that the [trial c]ourt left the affected property
owners' rights in limbo; it is that the [trial c]ourt did not give
[Appellant] what he wanted. [D]issatisfaction with a standing
verdict is not the sort of "extra hardship" the appellate courts
envision when evaluating a trial court's decision [to deny the]
motion for leave to file post-trial motions nunc pro tunc.
Trial Court Opinion, 12/18/19, at 1-2.
Upon review of the record, we concur with the trial court that trial
counsel had ample time to file a post-trial motion and failed to file the same,
if only to satisfy the 10-day deadline of Rule 227.1(c)(2) and allow Appellant
to retain new counsel, who could subsequently amend the post-trial motion
upon review of the record, if necessary.6 Moreover, upon learning of the trial
court’s verdict and trial counsel’s decision to discontinue further
representation, allegedly on July 22, 2019, Appellant waited until August 6,
2019, before approaching new counsel. Appellate counsel then delayed
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6 Although Appellant alleges that trial counsel only notified him on July 22,
2019, of the trial court’s verdict and of trial counsel’s decision not to represent
Appellant in a subsequent appeal, Appellant’s allegations are unsupported by
evidence in the certified record. Furthermore, Appellant failed to demonstrate
that he notified trial counsel that he wished to challenge the trial court’s
verdict so trial counsel could file a timely post-trial motion in order to preserve
any issue Appellant wished to raise.
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entering his appearance of record until August 13, 2019.7 Rather than
immediately filing a motion for leave to file a post-trial motion nunc pro tunc,
which could have been amended, if necessary, upon receipt of transcripts and
a review of the record, appellate counsel choose instead to file a notice of
appeal, without first filing a praecipe for entry of a final and appealable
judgment. See Reuter v. Citizens & Northern Bank, 599 A.2d 673, 676
(Pa. Super. 1991) (stating, a “verdict in a non-jury trial is not appealable until
the entry of judgment on the verdict”).
Evidence of an unforeseeable or unavoidable event that precludes
counsel from acting, such as counsel’s incapacity or a judicial emergency
suspending court operations, is required to show that an untimely post-trial
motion resulted from non-negligent circumstances. See Fischer v. UPMC
Northwest, 34 A.3d 115, 120 n.2 (Pa. Super. 2011) (stating, nunc pro tunc
relief in non-negligent circumstances “is meant to apply only in unique and
compelling cases in which the appellant [] clearly established that [he or] she
attempted to file [a pleading], but unforeseeable and unavoidable events
precluded [him or] her from actually doing so” (citation omitted)); see also
Cook v. Unemployment Compensation Bd. of Review, 671 A.2d 1130,
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7 Appellate counsel asserts that the delay in entering his appearance of record
was necessary, inter alia, to determine if a conflict of interest existed that
prevented representation. Appellant’s Brief at 16. A review of an August 2019
calendar reveals that four business days elapsed between August 6, 2019,
when Appellant first approached appellate counsel about representation, and
August 13, 2019, when appellate counsel entered his appearance of record,
in which to perform a conflicts check.
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1132 (Pa. 1996) (finding a non-negligent circumstance when the attorney was
unable to file a timely notice of appeal after being hospitalized and unable to
perfect the appeal from his hospital bed); Bass v. Commonwealth, 401 A.2d
1133 (Pa. 1979) (finding a non-negligent circumstance when the attorney
drafted a notice of appeal six days prior to expiration of time allowed for filing
the same, and counsel’s secretary, unaware the notice of appeal was placed
on her desk for filing, became ill, left work, and did not return to work until
after the deadline for filing the notice of appeal passed); but cf. Criss v.
Wise, 781 A.2d 1156, 1160 (Pa. 2001) (holding that a delay in mail delivery
does not amount to a non-negligent circumstance because “delays in the U.S.
mail are both foreseeable and avoidable” even during holiday seasons when
the U.S. Postal Service may deliver later than usual). In the absence of
evidence of an unforeseeable or unavoidable event, Appellant failed to
demonstrate that counsel’s actions and the procedural posture of the instant
case involved non-negligent circumstances.
Nonetheless, upon a review of the record, we are compelled to find the
prothonotary failed to comply with the notice requirements of Pennsylvania
Rule of Civil Procedure 236, and therefore, the 10-day period in which to file
a post-trial motion has not yet begun to run.
Rule 236 states, in pertinent part, as follows:
Rule 236. Notice by Prothonotary of Entry of Order or
Judgment
(a) The prothonotary shall immediately give written notice of the
entry of
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...
(2) any other 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.
(b) The prothonotary shall note in the docket the giving of the
notice[.]
Pa.R.Civ.P. 236(a)(2) and (b) (emphasis added).
Our Supreme Court, in Frazier v. City of Philadelphia, 735 A.2d 113
(Pa. 1999), held (in the context of a notice of appeal) that “an order is not
appealable until it is entered on the docket with the required notation that
appropriate notice has been given.” Frazier, 735 A.2d at 115 (citation
omitted). The parties’ receipts of notice of the order do not alter the formal
date of the order’s entry on the docket and the associated commencement of
the period allowed for appeal for purposes of the rules. Id. The Frazier
Court’s holding is a bright-line rule that is to be interpreted strictly. In re
L.M., 923 A.2d 505, 509 (Pa. Super. 2007).
In Fischer, supra, this Court, in applying the Frazier bright-line rule,
held, “it is the prothonotary's duty to give written notice of entry of the order
denying [] post-trial motions to [the appellant’s] counsel and to note on the
docket that notice was given.” Fischer, 34 A.3d at 121 (emphasis added).
The Fischer Court further held that the “failure of the [p]rothonotary to give
notice of the order [denying the post-trial motion] constituted a breakdown in
court operations[.]” Id. Moreover, local practice cannot excuse the
prothonotary’s non-compliance with the notification mandate and procedural
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requirement set forth in Rule 236. Id. The prothonotary must specifically
note on the docket the date that Rule 236 notice was given to the appropriate
parties. Id. This procedural requirement serves “to promote clarity, certainty
and ease of determination, so that an appellate court will immediately know
whether [a pleading] was [filed] in a timely manner, thus eliminating the need
for a case-by-case factual determination.” Frazier, 735 A.2d at 115 (citation
omitted).
Here, a review of the trial court docket reveals that the non-jury verdict
was entered on the docket on July 15, 2019, but the prothonotary failed to
note that Rule 236 notice was provided to Appellant and Michuck. The docket
entries pertaining to the non-jury verdict are as follows:
07/15/2019 Opinion and findings dated 7/10/19. (7/15/19 PJM
JHD)
07/15/2019 Order of court dated 7/10/19, It is hereby ordered
that [Appellant] has failed to meet his burden of
proof and his complaint is dismissed with prejudice.
(7/15/19 PJM JHD)
Trial Court Docket, 12/18/19, at unnumbered page 3 (extraneous
capitalization omitted).
Conspicuously absent from the two docket entries supra is a notation on
the docket that Rule 236 notice of the trial court’s non-jury verdict was
provided to Appellant or Michuck. Although the notation “(7/15/19 PJM JHD)”
on both entries may indicate that notice was provided, local practices, such as
this, in which a date and initials are listed, do not satisfy the prothonotary’s
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obligation to note on the docket the date Rule 236 notice was given.
Furthermore, a local practice, such as the case here, does not define for this
Court with clarity and certainty that Rule 236 notice was, indeed, given. A
prothonotary should make a notation that specifically states, for example,
“Rule 236 notice provided on” followed by the date the notice was given, in
order to comply with the notification mandate and procedural requirement of
Rule 236. Anything short of such a notation constitutes a failure by the
prothonotary to comply with the notification mandate and procedural
requirement of Rule 236, and is a breakdown in court operations.
In applying the principals of the bright-line rule announced in Frazier,
supra, to the case sub judice, the 10-day period in which to file a post-trial
motion without leave of court did not begin to run upon entry of the non-jury
verdict on the trial court’s docket on July 15, 2019, since the prothonotary did
not note on the docket that Rule 236 notice of the trial court’s non-jury verdict
was provided to the parties. Appellant’s challenge to the order denying his
request for nunc pro tunc relief requires this Court to evaluate the nature of
counsel’s conduct both during and after the 10-day filing period for a post-trial
motion. To conduct this inquiry properly, we need to know, with certainty and
confidence, when that 10-day filing period commenced. The absence of a
contemporaneous Rule 236 notation on the docket hampers our ability to
conduct appellate review. Given the prospect that appellate claims are subject
to waiver in the event timely post-trial motions are not filed (and excusable
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circumstances are not present), strict application of Rule 236’s notice
requirement is an essential procedural requirement we cannot overlook.
Because the 10-day filing period for a post-trial motion was never
triggered due to the prothonotary’s failure to notate the docket consistent with
Rule 236, Appellant’s motion for leave to file a post-trial motion nunc pro tunc
was a legal nullity, as was the trial court’s order denying Appellant’s request.
Consequently, we vacate the trial court’s September 19, 2019 order denying
Appellant’s motion for leave to file a post-trial motion nunc pro tunc. We also
vacate the May 18, 2020 entry of judgment on the trial court’s non-jury
verdict. We remand this case and direct the prothonotary to provide notice of
the trial court’s July 15, 2019 non-jury verdict to Appellant and Michuck in
accordance with the Pennsylvania Rules of Civil Procedure and enter a notation
on the trial court’s docket that Rule 236 notice was provided as of the date on
which the same was completed. Thereupon, should Appellant still wish to file
a post-trial motion, Appellant shall do so within ten days of the date on which
Rule 236 notice is noted on the trial court docket.8
Order vacated. Entry of judgment vacated. Case remanded with
instructions. Jurisdiction relinquished.
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8 Both parties are reminded that if either party seeks to file a notice of appeal,
the party must first file a praecipe to enter judgment on the trial court’s
non-jury verdict. The notice of appeal must be filed within 30 days of the
entry of judgment on the trial court docket and upon a notation on the docket
that Rule 236 notice of the same was provided.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2020
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