Smithson, R. v. Columbia Gas

J-S03033-21
2021 PA Super 157RUSSELL N. SMITHSON, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
COLUMBIA GAS OF PA/NISOURCE :
AND MAPLE GROVE ENTERPRISES, :
INC., :
:
Appellees : No. 845 WDA 2020
Appeal from the Order Entered March 25, 2020
in the Court of Common Pleas of Clarion County
Civil Division at No(s): 464 cd 2018
BEFORE: DUBOW, J., MURRAY, J. and STRASSBURGER, J.*
OPINION BY DUBOW, J.: FILED: AUGUST 9, 2021
Appellant, Russell N. Smithson, appeals from the trial court’s Order
entered on March 25, 2020, which granted summary judgment in favor of
Appellees Columbia Gas of PA/NiSource (“Columbia Gas”) and Maple Grove
Enterprises, Inc. (“Maple Grove”). Because Appellant’s August 5, 2020 filing
of the notice of appeal appears untimely on its face, we first examine
whether we have jurisdiction over this appeal. Upon review, we conclude
that the ambiguous docket entry made by the trial court prothonotary does
not provide sufficient information for this Court to ascertain with certainty
that the prothonotary provided immediate notice of the March 25, 2020
Order to Appellee as required by Pa.R.C.P. 236. This failure to abide by the
strict requirements of Rule 236 constitutes a breakdown in the operation of
* Retired Senior Judge assigned to the Superior Court.
J-S03033-21
the trial court. Therefore, we decline to quash Appellant’s appeal based
upon untimeliness. Nevertheless, Appellant has failed to comply with
multiple Rules of Appellate Procedure, thereby impeding our appellate
review, and we dismiss his appeal on this basis.
Briefly, Appellant owns land in Madison Township, Clarion County,
Pennsylvania. On May 1, 2018, Appellant pro se filed a Complaint asserting
claims against Appellees relating to allegations that Appellees unlawfully
removed natural gas from his land and later sold it back to him. He later
amended the Complaint on August 1, 2018.
Following discovery, Appellees filed Motions for Summary Judgment.
On March 25, 2020, the trial court granted the Motions and dismissed the
case with prejudice. On the Order, a handwritten note appears in the left
corner reading “3-25-2020 A. Ebeck Esq. N. Parker Esq. R & B Smithson.”
On the docket, immediately following the text of the March 25, 2020 Order,
the typewritten text reads: ”SENT TO R & B. SMITHSON, N. PARKER ESQ &
A. EBECK ESQ.”
On April 9, 2020, the trial court received a handwritten letter from
Appellant. The court construed the letter as a motion for reconsideration
and denied it on April 21, 2020. On June 19, 2020, Appellant filed a
collection of documents with the trial court. The court construed the filing as
a second motion for reconsideration and denied it on July 9, 2020.
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On August 5, 2020, Appellant pro se filed the instant Notice of Appeal,
stating that he was appealing from the March 24, 2020 Order of Court (i.e.,
the Order granting summary judgment, which was dated March 24, 2020
and entered on March 25, 2020). On August 7, 2020, the trial court ordered
Appellant to file a Concise Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b). Following the trial court’s August 7, 2020
Order, Appellant mailed a document to the trial court entitled “Judge Sara J.
Seidle-Patton Missing from Trail [sic] Transcripts Clarion County
Prothonotary Docket Entries.” The prothonotary received it on August 24,
2020, and docketed it as Appellant’s Rule 1925(b) Concise Statement. On
September 4, 2020, the trial court issued an order directing this Court to its
Order denying summary judgment on March 25, 2020, in lieu of a Pa.R.A.P.
1925(a) Opinion.
On September 28, 2020, this Court sua sponte issued a per curiam
Order stating that upon review of the trial court docket, this Court
determined that the trial court prothonotary failed to indicate on the docket
that it had provided notice to Appellant of the Order from which Appellant
wished to appeal, rendering Appellant’s Notice of Appeal premature. Order,
9/28/2020, at 1. This Court ordered the trial court prothonotary to provide
the requisite Pa.R.C.P. 236 notice to the parties, note on the docket the date
on which it provided the Rule 236 notice, and provide an updated docket to
this Court. Id. at 2 (citing Pa.R.C.P. 236 (requiring trial court prothonotary
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to provide immediate written notice to parties of entry of any order and note
the provision of such notice in the docket)). In response, both Appellees
filed applications for relief pursuant to Pa.R.A.P. 123, requesting that this
Court reconsider the September 28, 2020 Order and quash Appellant’s
appeal as untimely filed.
While those motions were pending, the trial court re-issued its March
25, 2020 Order. This time it included a notation on the order stating “9-30-
2020 Copies sent pursuant to Pa.R.C.P. 236 A. Ebeck Esq N Parker Esq R & B
Smithson.” On the docket, following the text of the order, it reads: “COPIES
RE-SENT PURSUANT TO PA.R.C.P. 236 TO R & B SMITHSON, N. PARKER ESQ
& A. EBECK ESQ ON SEPT 30, 2020.”
Following its review of the updated docket, this Court issued an Order
on October 21, 2020, indicating that upon review of the updated docket, we
deemed Appellant’s Notice of Appeal to be premature but timely filed.
Order, 10/21/2020, at 1. We denied Appellees’ pending motions to
reconsider and quash the appeal without prejudice and informed Appellees
they could raise the issue again in their responsive briefs to this Court. Id.Appellant’s Brief does not contain a statement of questions presented
as required by Pa.R.A.P. 2111(a)(4). Nor does it address the timeliness of
his filing of the Notice of Appeal. Appellees, on the other hand, re-raise the
issue of timeliness in their Briefs, arguing that Appellant failed to file his
Notice of Appeal within 30 days of the entry of the March 25, 2020 Order.
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Appellees maintain that Appellant’s Notice of Appeal, which was not filed
until August 5, 2020, was untimely filed. Columbia Gas’s Brief at 15; Maple
Grove’s Brief at 15-17. Appellees assert this is the case even when factoring
in any of the Pennsylvania Supreme Court’s Emergency Orders relating to
the COVID-19 pandemic. Columbia Gas’s Brief at 15 n.4; Maple Grove’s
Brief at 16. Columbia Gas argues Appellant clearly received notice of the
March 25, 2020 Order because he filed a Motion for Reconsideration of that
Order. Columbia Gas’s Brief at 14. It also points out that the plain text of
Rule 236 does not mandate that the prothonotary explicitly refer to the rule
in the docket. Id. at 14 (citing Pa.R.C.P. 236). Appellant did not file a
Reply Brief.
“It is well-established that timeliness is jurisdictional, as an untimely[-
filed] appeal divests this Court of jurisdiction to hear the merits of the case.”
Affordable Outdoor, LLC v. Tri-Outdoor, Inc., 210 A.3d 270, 274 (Pa.
Super. 2019) (citation and quotation marks omitted). Pursuant to Pa.R.A.P.
903, an aggrieved party must file a Notice of Appeal within 30 days after
entry of the order from which the appeal is taken. Pa.R.A.P. 903(a). In civil
actions, the 30-day appeal period begins to run from the date the
prothonotary memorializes that it provided notice of the order to the parties
pursuant to Pa.R.C.P. 236. See Pa.R.A.P. 108(a) (explaining the “date of
entry of an order … shall be the day on which the clerk makes the notation
in the docket that notice of entry of the order has been given as required by
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[Rule] 236(b).”). Rule 236 requires a trial court prothonotary to provide
immediate written notice of the entry of any order or judgment. Pa.R.C.P.
236(a)(2). The prothonotary must provide the notice of the entry and a
copy of the order to each party’s attorney of record or directly to any
unrepresented party. Id. “The prothonotary shall note in the docket the
giving of the notice[.]” Pa.R.C.P. 236(b).
Our Supreme Court has held that the 30-day appeal period does not
begin to run until the prothonotary enters the order on the docket with the
required notation that it gave appropriate notice to counsel and
unrepresented parties. Frazier v. City of Philadelphia, 735 A.2d 113 (Pa.
1999). This holding is a “bright-line rule, to be interpreted strictly.” In re
L.M., 923 A.2d 505, 509 (Pa. Super. 2007).
This Court recently discussed Rule 236’s requirements at length in
Carr v. Michuck, 234 A.3d 797 (Pa. Super. 2020). In that case,
immediately following notations that an order dismissing the case and
findings had been entered on July 15, 2019, the docket included
parentheticals with what appeared to be a date and initials. This Court
determined such a notation did not comply with Rule 236, reasoning as
follows.
Conspicuously absent from the two docket entries … is a
notation on the docket that Rule 236 notice of the trial court’s
non-jury verdict was provided to [either party]. 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 obligation
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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.
Id. at 805-06.
In the instant case, immediately following text indicating the
prothonotary docketed the order, the prothonotary wrote, ”SENT TO R & B.
SMITHSON, N. PARKER ESQ & A. EBECK ESQ.” This note is less vague than
the note at issue in Carr. In fact, based on the context, the use of the term
sent to and the listing of the names, there is enough information to infer
logically that the note references the prothonotary’s provision of notice
pursuant to Rule 236.
However, “[a]s Pa.R.C.P. 236(b) makes clear, the prothonotary must
note on the docket the date the parties are given notice of the order.”
Fischer v. UPMC Northwest, 34 A.3d 115, 121 (Pa. Super. 2011). The
date the notice was sent is crucial. Rule 236 requires the notice to be
immediate. See Pa.R.C.P. 236(a) (“The prothonotary shall immediately give
written notice of the entry of … any order[.]”). Because the appellate clock
starts running once the prothonotary records the giving of the Rule 236
notice in the docket, appellate courts need to have a clear, verifiable way to
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determine that Rule 236 notice was indeed provided. See Carr, 234 A.3d at
805 (quoting Frazier, 735 A.2d at 115) (“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.’”); Fischer, 34 A.3d at 122 (“[T]he definitive assignment of
responsibility [to the prothonotary] and the requirement of a record of
performance of that responsibility are intended to avoid ambiguity and
speculation.”).
Herein, even if we infer the notation on the docket indicates the
prothonotary sent a Rule 236 notice to the parties, it is ambiguous whether
the prothonotary sent the notice to the parties on the same day the order
was entered on the docket, and we cannot state with “certainty and
confidence” whether and when proper notice was provided. Carr, 234 A.3d
at 806. That the parties may have received actual notice of the order is of
no moment. Fischer, 34 A.3d at 121-22. As such, we conclude there has
been a breakdown in court operations and the 30-day appellate period did
not begin to run upon entry of the Order granting summary judgment on the
trial court’s docket on March 25, 2020. Carr, 234 A.3d at 806. Accordingly,
Appellant’s notice of appeal was filed prematurely, but was perfected once
the trial court prothonotary issued a proper Rule 236 notice upon this
Court’s direction.
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Nevertheless, we are unable to proceed to the merits of the appeal.
Upon review of Appellant’s Brief, which is a six-paragraph handwritten
document with various attachments, we determine that Appellant’s
noncompliance with our rules of procedure forecloses any possibility of
meaningful appellate review. “[A]lthough this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally confers
no special benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d
245, 251-52 (Pa. Super. 2003). “[A] pro se litigant must comply with the
procedural rules set forth in the Pennsylvania Rules of the Court.”
Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa. Super. 2014)
(quoting Lyons, 833 A.2d at 252). “[A]ny layperson choosing to represent
himself [or herself] in a legal proceeding must, to some reasonable extent,
assume the risk that his [or her] lack of expertise and legal training will
prove his [or her] undoing.” Commonwealth v. Gray, 608 A.2d 534, 550
(Pa. Super. 1992) (quoting Vann v. Unemployment Comp. Bd. of
Review, 494 A.2d 1081, 1086 (Pa. 1985)).
As noted above, Appellant’s Brief does not contain a statement of
questions presented as required by Pa.R.A.P. 2111(a)(4). His brief also is in
violation of Pa.R.A.P. 2111(a)(1) (requiring a statement of jurisdiction);
Pa.R.A.P. 2111(a)(2) (requiring a separate section for the order in
question); Pa.R.A.P. 2111(a)(3) (requiring a statement of the scope and
standard of review); Pa.R.A.P. 2111(a)(5) (requiring a separate statement of
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the case with citations to the record); Pa.R.A.P. 2111(a)(6) (requiring a
summary of argument); and Pa.R.A.P. 2111(a)(8) (requiring an argument
section). Furthermore, Appellant failed to file a reproduced record; rather,
he attaches numerous documents to his brief. See Pa.R.A.P. 2188 (“If an
appellant fails to file his designation of [the] reproduced record, brief or any
required reproduced record within the time prescribed by these rules, ... an
appellee may move for dismissal of the matter.”);1 see also Rosselli v.
Rosselli, 750 A.2d 355 (Pa. Super. 2000) (“Compliance with the
Pennsylvania Rules of Appellate Procedure 2152–2154 regarding contents of
reproduced records on appeal is mandatory, not directory.”).
Although this Court construes materials filed by a pro se litigant
liberally, we cannot act as Appellant’s counsel. Branch Banking and Trust
v. Gesiorski, 904 A.2d 939, 942-43 (Pa. Super. 2006). Any layperson who
chooses to represent himself assumes the risk that his lack of legal training
will be his undoing. Id. As a whole, Appellant’s disregard for the Rules of
Appellate Procedure has left this Court without the ability to conduct
effective review. See id. (declining to consider merits due to brief that was
“wholly inadequate to present specific issues for review”). Accordingly, we
dismiss this appeal without consideration of the merits of Appellant’s issues.
See Pa.R.A.P. 2101 (“[I]f the defects are in the brief or reproduced record of
1 Columbia Gas points out this and other errors in its brief. See Columbia
Gas’s Brief at 19-20.
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the appellant and are substantial, the appeal or other matter may be …
dismissed.”).
Appeal dismissed.
Judge Murray joins the opinion.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/09/2021
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