Elmer L. THOMAS, Appellant, v. John ELASH, Appellee. Elmer L. Thomas, Appellant, v. John Elash, Appellee.
No. 2153 MDA 2000, No. 2067 MDA 2000
Superior Court of Pennsylvania
Submitted April 9, 2001. Filed July 25, 2001.
781 A.2d 170
¶6
¶7 We turn now to appellant‘s argument Deputy Corwell was unauthorized to issue the citation in question because the traffic violation of driving while his license was suspended did not amount to a “breach of the peace,” as appellant contends is required by Leet. Appellant‘s interpretation of Leet illogically limits the authority of a trained deputy to issuing citations for only those violations of the Vehicle Code that involve behavior or action similar to those actions prohibited under the disorderly conduct provision of the Crimes Code.4 Were we to interpret Leet as narrowly as appellant suggests, a deputy would be prohibited from enforcing section 1543(b) of the Vehicle Code, even if violated in his presence, because the operation of a motor vehicle while under suspension does not necessarily involve, “on any part of [the] driver, any intent to cause public inconvenience, annoyance, or alarm, or recklessly create risks thereof.” (Appellant‘s brief at 9; see also
¶8 We agree with the trial court‘s reasoning, “because a citation was issued by a law enforcement officer, Deputy Corwell, based on information that [appellant] committed a summary violation received from a very credible witness, the citation was issued in full compliance with the letter and spirit of the Pennsylvania law.” (Trial Court Opinion, Rehkamp, J., 10/11/00, at 2.) Finding no error, we affirm the judgment of sentence.
¶9 Judgment of sentence affirmed.
John L. Elash, Pittsburgh, appellee, in propria persona.
Before: DEL SOLE, President Judge, STEVENS and TAMILIA, JJ.
OPINION
PER CURIAM.
¶1 This is a consolidated appeal of two orders entered in the Court of Common Pleas of Huntingdon County effectively entering judgment for Appellee/Defendant, John Elash, Esq., and against Appellant/Plaintiff, Elmer Thomas, in this breach of contract action. Appellant‘s central issue is one of first impression: Does the prisoner mailbox rule apply to the filing of post trial motions in a civil case?
¶2 Appellant is serving a term of life imprisonment for the murder of his mother. Following his conviction in 1982, Appellant availed himself of virtually every means possible to appeal his sentence including: a direct appeal to this Court; five petitions for post conviction collateral relief,1 two of which were appealed to this
¶3 On July 7, 1995, Appellant filed a Complaint in the Court of Common Pleas of Huntingdon County against Appellee alleging breach of contract in the underlying criminal action.2 After Appellant filed two Amended Complaints, Appellee filed an Answer and New Matter. In mid June of 1998, Appellant sent Appellee a Request for Admissions. On July 30, 1998, Appellant filed a motion for summary judgment based on Appellee‘s failure to respond to the Request for Admissions within 30 days. When Appellee failed to file a timely response to the summary judgment motion, the trial court, by Order dated October 13, 1998, directed Appellee to submit a response within 30 days. Appellee complied with the court‘s order and, additionally, sought leave of court to file a late response to Appellant‘s Request for Admissions. On November 13, 1998, the trial court entered an order (1) granting Appellee an extension of time to respond to Appellant‘s Request for Admissions; (2) denying Appellant‘s motion for summary judgment; and (3) directing the Prothonotary to appoint a panel of arbitrators to decide the case.
¶4 Following a March 25, 1999 hearing, a panel of arbitrators entered an award in favor of Appellee. Appellant filed a timely appeal to the Court of Common Pleas. Following trial de novo, the court entered judgment for Appellee and against Appellant by Order dated January 31, 2000. Appellant‘s timely appeal to this Court was quashed because he had failed to file post trial motions pursuant to
¶6 We can dispose of Appellant‘s second appeal quickly.
¶7 Although Appellant ostensibly raises three issues in his brief, only one is presented: Are the issues raised in Appellant‘s post trial motions preserved for appeal when timely post trial motions were mailed from prison, but were never received by the trial court? In essence, Appellant asks us to apply the prisoner mailbox rule to filings in civil cases. Although we hold that the prisoner mailbox rule does apply in the present case, we find that Appellant is still entitled to no relief.
¶8 Our Commonwealth‘s “prisoner mailbox rule” evolved from the United States Supreme Court‘s decision in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). There, the Court held that a federal prisoner‘s pro se notice of appeal was considered “filed” on the day it was delivered to prison authorities for forwarding to the court clerk. Id. at 276, 108 S.Ct. 2379. The Court reasoned that prisoners proceeding pro se “cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline.” Id. at 270-71, 108 S.Ct. 2379.
¶9 Relying on the Houston decision, the Pennsylvania Supreme Court applied the prisoner mailbox rule to a pro se appeal to the Commonwealth Court from a decision of the Pennsylvania Board of Probation and Parole. The Court explained:
The pro se prisoner‘s state of incarceration prohibits him from directly filing an appeal with the appellate court and prohibits any monitoring of the filing process. Therefore, we now hold that in the interest of fairness, a pro se prisoner‘s appeal shall be deemed to be filed on the date that he delivers the appeal to prison authorities and/or places his notice of appeal in the institutional mailbox. We warn, however, that this holding applies only to pro se petitioners who are incarcerated.
Smith v. Pa. Bd. of Prob. & Parole, 546 Pa. 115, 683 A.2d 278, 281 (1996).
¶11 In applying the prisoner mailbox rule to the spectrum of private criminal complaints, this Court explained that the rule
is based on affording prisoners the same appellate opportunities as other litigants. The reasoning does not depend on the importance of the rights at stake when a prisoner challenges his or her sentence or conviction. In fact, the U.S. Supreme Court in Lack specifically rejected the argument that the rule depends on whether the appeal is criminal or civil.
Cooper, 710 A.2d at 78 (citations omitted). We find the same true here: an incarcerated, pro se litigant in a civil action is faced with the same difficulties in tracking his filings as an incarcerated defendant pursuing relief, pro se, from a criminal conviction. Therefore, we hold that the prisoner mailbox rule applies to all pro se legal filings by incarcerated litigants. As such, a legal document is deemed filed by an incarcerated litigant, proceeding pro se, on the date it is delivered to the proper prison authority or deposited in the prison mailbox. Accordingly, the rule applies in the present case, and we will consider Appellant‘s post trial motions as filed on the date they were deposited in the prison mailbox.5
¶12 To avail himself of the prisoner mailbox rule, however, an incarcerated litigant must supply sufficient proof of the date of mailing, which Appellant here has failed to do. Attached to a copy of his post trial motions is a copy of a proof of service, stating that Appellant mailed the motions on February 4, 2000. That document, however, is not notarized. Normally, in such a case, we would remand to the trial court for a hearing on the issue. See Jones, supra at 426 n. 3 (stating that “[w]here ... the facts concerning the timeliness [of the filing] are in dispute, a remand for an evidentiary hearing may be warranted.“); Little, supra at 1289 (remanding to PCRA court to consider documentary evidence submitted by petitioner to establish timeliness of petition). In the present case, however, no remand is necessary as we find Appellant is, in any event, entitled to no relief.
¶13 Although Appellant may have preserved the issues raised in his post trial motions by mailing the motions within 10 days of the verdict, he has now waived those issues by failing to include them in his brief to this Court.
¶14 We note, however, that even if we were to consider the issues raised in Appellant‘s post trial motions, we would find them meritless. Appellant contends that the trial court erred in (1) ordering Appellee to respond to Appellant‘s summary judgment motion, sua sponte, after the 30 day period for a response had passed; (2) granting Appellee an extension of time to file responses to Appellant‘s Request for Admissions, after the 30 day period for responses had passed; and (3) finding that Appellant presented no evidence at trial to support his claim.7
¶15 Appellant‘s first two claims assign error to rulings within the trial court‘s discretion.
¶16 Similarly,
¶17 Finally, Appellant argues that the trial court erred in concluding that he presented no evidence in support of his claim. In its Memorandum following trial, the court found that Appellant “did not prove at trial that the contract of employment included terms other than the promise by [Appellee] to prepare and file a PCRA petition—a promise which he kept.” (Memorandum, 1/31/00, at 4, ¶ 16). The one day bench trial consisted solely of the parties’ testimony. Obviously, the trial judge disbelieved Appellant‘s description of the contract terms. See Anchel v. Shea, 762 A.2d 346, 358 (Pa.Super.2000) (“It is the fact-finder‘s duty to judge the credibili-
¶18 In sum, we hold that the prisoner mailbox rule applies to all pro se filings by incarcerated litigants. Therefore, in the present case, had Appellant provided sufficient proof of mailing, we would have considered his pro se post trial motions filed on the date he deposited them in the prison mailbox. However, because Appellant failed to include the underlying substantive issues in his appellate brief, they are waived for purposes of appeal.
¶19 Judgment affirmed.
Dissenting Opinion filed by STEVENS, J.
¶1 I respectfully disagree with the Majority‘s sweeping policy proclamation that “... the prisoner mailbox rule applies to all pro se legal filings by incarcerated litigants.” Rather, I would address the issue on a case-by-case basis consistent with established case law.
¶2 Moreover, sweeping policy changes in the law should come from the duly elected state legislators, not the court. Any extension of the prisoner mailbox rule to civil cases, therefore, is a question to be decided by the Pennsylvania Legislature, where the issue can be appropriately debated in an open and public forum.