Marcos Sanchez, M.D. v. Mehdi Nikparvar

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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).
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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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