Muir, N. & T. v. Heller, Ertley and Zimmerman

J-A05029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NELLILOU & THOMAS MUIR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT P. HELLER AND CYNTHIA A. :
ERTLEY F/K/A CYNTHIA A. :
ZIMMERMAN, JARED ZIMMERMAN : No. 733 MDA 2021
AND KIMBERLY LITZ
Appellants
Appeal from the Order Entered May 7, 2021
In the Court of Common Pleas of Clinton County
Civil Division at No(s): 2019-00309
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY OLSON, J.: FILED: APRIL 26, 2022
I must respectfully dissent from the majority’s decision to quash this
appeal. In accordance with our precedent, I believe we have jurisdiction over
the appeal. I would thus reach the merits of this appeal and would affirm the
trial court’s judgment.
At the outset, on a clean slate, I agree with the Majority’s well-written
and cogent analysis of this case: since the post-trial motion was outstanding
at the time the Appellants filed their notice of appeal – and the trial court thus
had the opportunity to modify, vacate, or reverse its decision – the Appellants
were required to file a separate notice of appeal after the trial court denied
their post-trial motion. See Majority Memorandum at *5. Further, since the
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A05029-22
premature notice of appeal was not filed “after the announcement of a
determination,” quashal should be required under our rules. See id.
However, I believe that the Majority’s decision conflicts with this Court’s
published opinion in Commonwealth v. Ratushny, 17 A.3d 1269 (Pa. Super.
2011). In that criminal case, we held:
Appellant filed a timely post-sentence motion on September
28, 2009, thereby tolling the 30–day appeal period.
However, before appellant's post-sentence motion was
decided, and perhaps being unaware of the fact that the
appeal period was being tolled, he filed a notice of appeal on
Monday, October 19, 2009. Appellant's post-sentence
motion was subsequently denied without a hearing on
October 22, 2009. Under Pa.R.Crim.P. 720(A)(2), no direct
appeal may be taken by a defendant while his post-sentence
motion is still pending. See Comment, Pa.R.Crim.P. 720.
However, pursuant to Pa.R.A.P. 905, we will treat appellant's
premature notice of appeal as having been filed after entry
of the order denying post-sentence motions.
Ratushny, 17 A.3d at 1271 n.4 (some citations omitted).
Although Ratushny is a criminal case, it appears to be on all fours with
the case at bar. Therefore, even though I believe Ratushny was incorrectly
decided (and the Majority’s analysis in the case at bar is correct), I believe
Ratushny is binding on us and that, under Ratushny, we have jurisdiction
to decide this case.
I would thus reach the merits of this appeal and would affirm based
upon the trial court’s well-reasoned opinion.
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