Davis, L. v. McFalls, N.

J-S21044-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
LEWIS DAVIS AND LAURA LEE HENRY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
NICK MCFALLS C/O MACE PROPERTY :
MANAGEMENT, :
:
APPEAL OF: LEWIS DAVIS : No. 1794 WDA 2016
Appeal from the Order October 28, 2016
in the Court of Common Pleas of Allegheny County,
Civil Division, at No(s): LT-16-000564
BEFORE: LAZARUS, DUBOW, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED: May 26, 2017
Lewis Davis pro se appeals from the order entered on October 28,
2016, which denied his motion to file a late appeal from arbitration. We
affirm.
On June 23, 2016, Nick McFalls c/o Mace Property Management
(Landlord) filed a landlord/tenant complaint against Lewis Davis and Laura
Lee Henry (collectively, Tenants) for possession and rent due. A hearing
was held before a board of arbitrators on August 2, 2016. Davis appeared at
the hearing, but Henry did not. The board of arbitrators awarded possession
and $1,600 to Landlord.
*Retired Senior Judge assigned to the Superior Court.
J-S21044-17
On September 2, 2016, Davis filed a motion to file a late appeal for a
trial de novo in the Court of Common Pleas of Allegheny County. 1 Davis
submitted the following in support of his motion.
I was very sick with a serious skin [disease] which prevented me
from coming in sooner to file this appeal. I’m currently in
college and would like this appeal so I may pay my back rent
and keep my apartment. I pray you will grant my appeal so I
may get a new lease and finish school (Geneva College) and
have a place for me and my kids. The main delay is I couldn’t
contact [Henry] to have her show and pay her half. I want to
work out payment arrangements ASAP.
Motion to File Late Appeal, 9/2/2016.
On October 28, 2016, the trial court denied Davis’s motion, but stayed
Davis’s eviction until November 28, 2016. On November 23, 2016, Davis
filed an appeal to this Court. The trial court did not order Davis to file a
concise statement of errors complained of on appeal, but did author an
opinion pursuant to Pa.R.A.P. 1925(a).
On appeal, Davis argues that the trial court erred in denying his
motion for a late appeal. We consider this issue mindful of the following.
The 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.
1
An appeal from arbitration must be filed no later than 30 days after the
entry of the arbitrators’ award pursuant to Pa.R.C.P. 1308(a). In this case,
September 1, 2016, was the 30th day.
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Raheem v. Univ. of the Arts, 872 A.2d 1232, 1234 (Pa. Super. 2005)
(internal citations and quotation marks omitted).
“The timeliness of an appeal … for a de novo trial in the court of
common pleas [] is a jurisdictional matter. Thus, the court of common pleas
does not have jurisdiction to hear an arbitration appeal for a trial de novo
unless that appeal is timely filed.” Lough v. Spring, 556 A.2d 441, 444 (Pa.
Super. 1989). Our Supreme Court has stated the following.
As a general rule, an appeal nunc pro tunc is only granted in civil
cases where there was fraud or a breakdown in the court’s
operations…. In recent years, however, the courts have
somewhat liberalized this rigid standard which required fraud or
a breakdown in the court’s operation. See, e.g., Cook v.
Unemployment Comp. Bd. of Review, [] 671 A.2d 1130
([Pa.] 1996) (hospitalization of litigant during the running of the
appeals period which resulted in the non-negligent late filing of
the appeal supplied grounds for granting an appeal nunc pro
tunc).
Lee v. Guerin, 735 A.2d 1280, 1281 (Pa. Super. 1999) (quoting
Commonwealth v. Stock, 679 A.2d 760, 763 (Pa. 1996) (some internal
citations and quotation marks omitted)).
Here, the trial court concluded that, based upon Davis’s motion and
argument, Davis “did not set forth facts establishing either a breakdown in
the court machinery or fraud.” Trial Court Opinion, 12/1/2016. Thus, the
trial court concluded it properly denied Davis’s motion.
In Davis’s motion to the trial court and again in his brief to this Court,
he cites to a skin disease as his excuse for his late filing. Specifically, Davis
states that “[i]n August 2016 [he contracted] a very contagious skin disease
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known as scabies that wouldn’t allow [him] to attend Geneva for his fall
semester…. [He] was on home confinement for 12 weeks until his skin
condition was resolved.” Davis’s Brief at 1 (unnumbered) (unnecessary
capitalization omitted).
Notably, Davis does not point to any non-negligent reason as to why
he did not file his appeal by its due date, September 1, 2016. Moreover,
Davis does not explain how he was able to file his motion on September 2,
2016 despite his “home confinement.” Based on the foregoing, we hold the
trial court did not abuse its discretion by denying Davis’s motion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
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