M. Ailеen MORNINGSTAR, Individually and on Behalf of Her Minor Children, and on Behalf of the Estate of John Morningstar, Deceased Appellee v. Nicholas HOBAN, Appellant v. Commonwealth of Pennsylvania, Department of Transportation
Two Cases
Superior Court of Pennsylvania
January 15, 2003
Reargument Denied March 21, 2003
812 A.2d 1262 | 2003 PA Super 14
Argued Oct. 3, 2002.
Thomas L. VanKirk, Pittsburgh, for appellant.
JOYCE, J.:
¶ 1 Presently before this Court are two appeals filed by Appellant, Nicholas Hoban. The first appeal is from the judgment entered in the Court of Common Pleas of Allegheny County on September 26, 2001. The second appeal is from the February 21, 2002 order of the trial court, which dismissed Appellant‘s motion to strike the September 26, 2001 judgment. For the reasons that follow, we quash these appeals.
¶ 2 On March 28, 2001, following a jury trial, the jury returned a verdict in favor of Appellee, M. Aileen Morningstar, and against Appellant, Nicholas Hobаn in the amount $7 million ($4 million in compensatory damages and $3 million in punitive damages). The parties stipulated that Appellee was entitled to delay damages in the amount of $208,547.00 on the compensatory damage award. This stipulation was signed by the trial judge on April 4, 2001 and was docketed on April 9, 2001. Subsequently, Appellant, through his insurance carrier, paid to Appelleе the entire amount of the compensatory damage award, including delay damages. Appellant was represented at trial by the law firm of Zimmer Kunz, P.L.L.C. Appellant later retained new counsel, and on April 9, 2001, new counsel filed a motion for post-trial relief (see
¶ 3 On August 20, 2001, realizing that the trial court had not ruled on the motions for post-trial relief within 120 days, pursuant to
¶ 4 Appellant claims that he did not receive notice of the entry of the August 20, 2001 judgment. However, he admits having received notice of the praecipe for the entry of judgment. With respect to the September 26, 2001 judgment, Appellant claims that he did not receive notice of the praecipe for the entry of judgment, but admits that he received notice of the entry of judgment.
¶ 5 Meanwhile, on September 4, 2001, the trial judge held oral arguments on the post-trial motions. The triаl judge never issued an order specifically resolving the post-trial motions.5
¶ 6 On January 2, 2002, Appellant filed a motion to strike the judgment entered on September 26, 2001. Simultaneously, Appellant filed a notice of appeal from the judgment entered on September 26, 2001. On February 21, 2002, the trial court dismissed the motion to strike the judgment on the grounds that the court lacked jurisdiction to сonsider the motion in view of the fact that Appellant had already filed a notice of appeal on January 2, 2002. On March 6, 2002, Appellant filed a notice of appeal from the order dismissing the motion to strike judgment.6
¶ 7 Rule 227.4 of the Pennsylvania Rules of Civil Procedure provides as follows in pertinent part:
[T]he prothonotary shall, upon praecipe of a party:
(1) enter judgment upon the verdict of a jury or the decision of a judge, following a trial without jury, or enter the decree nisi as the final decree, if *
*
*
*
*
*
(b) one or more timely post-trial motions are filed and the court does not enter an order disposing of all motions within one hundred twenty days after the filing of the first motion. A judgment entered pursuant to this subparagraph shall be final as to all parties and all issues and shall not be subject to reconsideration.
¶ 8 Thus, pursuant to Rule 227.4(1)(b) and the explanatory comment thereto, after the expiration of the 120-day period, a party may praecipe for the entry of judgment. The judgment entered pursuant to the praecipe becomes final, and immediately appealаble, when it is entered on the docket. See
¶ 9 Arguing in favor of the timeliness of this appeal, Appellant clаims that
¶ 10 The Note accompanying Rule 227.4(1)(b) states that “[i]f a motion for delay damages has been filed, judgment may not be entered until that motion is decided or otherwise resolved. See Rule 238(c)(3)(i).” Rule 238(с)(3)(i) addresses the problem created by a court of common pleas judge who ruled that the entry of judgment under Rule 227.4 prior to the disposition of an unopposed motion for delay damages under Rule 238 precludes the award of such damages. See
¶ 11 Further, although the order granting the motion for delay damages was docketed on April 9, 2001, this does not provide a basis to conclude that the motion for delay damages was pending on April 9, 2001. Appellant has failed to provide any authority for the proposition that a motion must be deemed pending on the date in which the order granting the motion was docketed. Even if we accept Appellant‘s line of reasoning that it is theoretically possible to deem a motion pending on the date it is granted, Appellant‘s argument must fail in the instant case. A careful examination of the record shows that the order granting the motion for delay damages was docketed on April 9, 2001 by 8:42 a.m. (Certified Record at #54); Appellant‘s post-trial motion was docketed on April 9, 2001 by 3:15 p.m. (Certified Record at #55); and Appellee‘s post-trial motion was docketed on Aрril 9, 2001 by 3:24 p.m. (Certified Record at #56). Thus, given the above timeline, it is factually incorrect to assert that the motion for delay damages was pending when the post-trial motions were filed: the order granting the motion for delay damages was docketed before the parties’ post-trial motions were filed.
¶ 12 Additionally, even if we assume for the sake of argument that the motion for delay damages was pending on April 9, 2001, when the post-trial motions were filed, this fact does not preclude the entry of judgment at a later time. The language of
¶ 13 Apart from the issue of timeliness, Appellant argues in the alternative that this case should be remanded to the trial court to determine (1) whether the motion for delay damages was pending when the parties filed their post-trial motions; (2) whether Appellee should be estopped from arguing untimeliness of this appeal since despite the entry of judgment on August 20, 2001, Appellee‘s counsel still participated in the September 4, 2001 oral argument before the trial court; and (3) whether the trial judge incorrectly advised the parties that they would have 120 days from September 4, 2001 in which to file timely appeals. Appellant‘s arguments lack arguable merit and there is no need to remand this matter to the trial сourt.
¶ 14 In the first place, we have already determined that the motion for delay damages was not pending when the parties filed their post-trial motions. Secondly, whether or not Appellee raises the issue of the untimeliness of this appeal is immaterial. This is because the timeliness of an appeal is jurisdictional and can be raised by this Court sua sponte. See McKean County Animal Hospital v. Burdick, 700 A.2d 541, 542 (Pa.Super.1997) (tardy filings of noticеs of appeal implicate the jurisdiction of the appellate tribunal to entertain a cause of action); Rieser v. Glukowsky, 435 Pa.Super. 530, 646 A.2d 1221, 1223 (1994) (stating that the issue of jurisdiction may be raised by the court sua sponte). Thus, even if Appellee were estopped from arguing untimeliness, we must still consider this issue on our own motion. Thirdly, there is nothing in the record to substantiate Appellant‘s allegation that the trial judgе incorrectly advised the parties that they would have 120 days from September 4, 2001 in which to file timely appeals. We point out that Appellee strongly disagrees with Appellant‘s assertion. Appellee asserts that the trial judge never made any such statements regarding the time for filing an appeal. See Brief for Appellee, at 29. Further, the trial judge, Judge Max Baer, never acknowledged making such statements in his January 18, 2002 opinion, in his February 21, 2002 order, or in his March 8, 2002 memorandum in lieu of further opinion. The above notwithstanding, even if we assume for the sake of argument that the trial judge misled the parties, as Appellant alleges, this does not explain Appellant‘s inaction upon receiving notice of the August 20, 2001 praecipe fоr entry of judgment, and the notice of the judgment entered on the same day. Nor does it explain his inaction upon receiving the September 26, 2001 praecipe for the entry of judgment and the judgment entered that same day.7
¶ 15 In sum, with respect to Appellant‘s appeal from the September 26, 2001 judgment, we must quash this appeal as it was filed on January 2, 2002—long after the exрiration of the thirty-day period (
¶ 16 Appeals quashed.
¶ 17 CAVANAUGH, J., files Concurring Opinion.
CAVANAUGH, J., Concurring:
¶ 1 I concur in the majority opinion, but I write separately to emphasize that the language of thе forbearance agreement is the critical, factual predicate on which I rely to join in this disposition.
¶ 2 Although I initially felt that the proper course was to remand this matter for a hearing to resolve the factual disputes surrounding alleged comments made by the trial court, I now conclude that the forbearance agreement executed by the pаrties provided indisputable notice to appellant of the entry of judgment and the attempted execution on the judgment. Appellant‘s failure to timely respond to the explicit language of the agreement is indefensible and renders relief in the form of an appeal nunc pro tunc unavailable.
¶ 3 The preamble to the forbearance agreement states, in pertinent part:
WHEREAS, on or about September 26, 2001, a judgment for punitive damages in the amount of $3,000,000 was rendered in favor of Plaintiff against Defendant in Civil Action GD99-13670 in the Court of Common Pleas of Allegheny County, Pennsylvania (the “Judgment“); and
WHEREAS, Plaintiff has commenced execution of the Judgment and Defendant has not posted a bond under
Pa.R.A.P. § 1731 to stay such execution; andWHEREAS, HHI and PICA have requested Plaintiff to forbear from any further action to cоllect on the Judgment so as not to disrupt or prevent a PICA Sale Transaction from occurring, and Plaintiff is willing to do so on the terms and conditions hereinafter set forth.
¶ 4 The forbearance agreement was signed by the parties on November 29, 2001. The docket entries establish that appellee filed a writ of execution on September 26, 2001, and that appellant was served by the Sheriff of Washington County with the writ of execution and interrogatories on September 27, 2001. Appellant did not file an appeal nunc pro tunc until January 2, 2002, more than a month after the agreement was signed and more than three months after being served with a writ of execution. Even assuming as true appellant‘s assertions that the trial court erroneously cited the time for aрpeal on September 4, 2001, and that the trial court‘s staff misled him into believing that a disposition of the post-trial motions on the merits was forthcoming, appellant cannot credibly argue that the forbearance agreement did not apprise him of the entry of judgment and the attempted execution on that judgment. Appellant would not be entitled to an appeal nunc pro tunc as a matter of law. See Freeman v. Bonner, 761 A.2d 1193, 1195 (Pa.Super.2000) (stating that “an appeal nunc pro tunc is only granted in civil cases where there was fraud or a breakdown in the court‘s operations,” or a “non-negligent happenstance“).
¶ 5 I concur in the majority opinion.