J-A21034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEPHEN KLEMASH, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JENNIFER KLEMASH,
Appellee No. 3298 EDA 2014
Appeal from the Order entered October 23, 2014,
in the Court of Common Pleas of Philadelphia County,
Civil Division, at No(s): February Term, 2013 No. 02264
BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 06, 2015
Stephen Klemash (“Appellant”) appeals from the trial court’s order
denying his motion for reconsideration of his post-trial motion for relief
pursuant to Pa.R.C.P. 227.1. Finding that Appellant’s post-trial motion was
untimely, we quash Appellant’s appeal and affirm the trial court’s order and
resulting judgment in favor of Jennifer Klemash (“Ms. Klemash”).
The trial court summarized the following background:
This case involves a dispute over the proceeds from the
sale of real estate. Appellant and his former sister-in-law [Ms.
Klemash] both claimed that they were entitled to the proceeds.
The parties deposited the proceeds in an escrow account and the
Appellant filed a Complaint requesting that the trial court order
that the escrow agent release the funds to the Appellant. The
trial court presided over a two day bench trial and on July 17,
2014, the trial court awarded the proceeds in the escrow account
to [Ms. Klemash].
*Former Justice specially assigned to the Superior Court.
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Trial Court Opinion, 3/20/15, at 1.
Procedurally, the trial court explained:
On February 22, 2013, Appellant filed a Complaint against
[Ms. Klemash], alleging that the Appellant was entitled to
proceeds from the sale of real estate. An escrow agent was
holding the funds during the litigation.
On March 7 and 10, 2014, the trial court heard evidence
on the matter. After the parties briefed the issues, the trial
court, on July 17, 2014, issued Findings of Facts and Conclusions
of Law and entered judgment against the Appellant and in favor
of [Ms. Klemash]. (“Order of July 17”).
The Appellant failed to file a Motion for Post-Trial Relief
within ten days of July 17, 2014, the date on which the trial
court issued the Order of July 17. Instead, the Appellant, on
August 15, 2014, filed a Notice of Appeal of the Order of July 17.
On September 30, 2014, the Appellant withdrew his Notice of
Appeal of the Order of July 17.
In an effort to preserve his appellate rights on the
substantive issues, the Appellant filed the following motions and
the trial court issued the following Orders.
• On September 15, 2014, the Appellant filed Post-Trial Motions
to the Order of July 17.
• On September 16, 2014, the trial court denied the Motion for
Post-Trial Relief because the Appellant had already filed a Notice
of Appeal and the Appellant failed to file a Motion for Post-Trial
Relief within ten days of the Order of July 17, 2014. (“Order of
September 16”).
• On September 26, 2014, the Appellant filed a Motion for
Reconsideration of the Order of September 16 or in the
Alternative Motion for Post Trial Relief Nunc Pro Tunc.
• The trial court denied this motion on October 23, 2014.
(“Order of October 23”) for the reasons discussed below.
• On November 19, 2014, Appellant filed a Notice of Appeal of
the Order of October 23.
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Th[e October 23, 2014 Order) is the Order that is the subject of
this appeal.
Trial Court Opinion, 3/20/15, at 2-3. Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant presents numerous issues for our review:
(a) Procedural Issues
1. Whether there was clear error in applying the facts or law to
the case at hand in that the Trial Court should consider the date
of the decision or “Final Order” to be September 9, 2014 (the
date the Motion to Stay Distribution was entered).
2. Whether the Trial Court abused its discretion when it denied
[Appellant’s] Motion for Reconsideration.
3. Whether the Trial Court abused its discretion when it denied
[Appellant’s] Motion Nunc Pro Tunc.
4. Whether [Appellant’s] late filing was as a result of “non-
negligent happenstance”.
(b) Substantive Issues
5. Whether the Court’s determination that [Appellant] failed to
meet the third element of unjust enrichment was supported by
the evidence and the applicable law.
6. Whether the Court’s determination that [Ms. Klemash]
obtained the rights to the proceeds from the sale of the Property
as a result of a legitimate court proceeding was supported by the
evidence and the applicable law.
7. Whether the Court’s determination that [Appellant] is
collaterally estopped from asserting his interest in the property
by a judicial proceeding in which [Appellant] did not participate
was supported by the evidence and the applicable law.
8. Whether the Court’s determination that it was not
unconscionable for [Ms. Klemash] to receive the benefits of
[Appellant’s] efforts was supported by the evidence and the
applicable law.
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9. Whether the Court’s determination that [Appellant]
inadequately protected his right to compensation was supported
by the evidence and applicable law including Styer v. Hugo, 422
Pa. Super. 262, 619 A.2d 347 (1993).
10. Whether the Court’s determination that [Appellant’s]
attendance at his brother's divorce trial constitutes sufficient
involvement in the proceeding for the divorce decree between
[Ms. Klemash] and Christian Klemash to be res judicata as to
him was supported by the evidence and the applicable law.
Appellant’s Brief at 2-4.
Based on our careful scrutiny of the record, and our resolution of
Appellant’s four procedural appellate issues, we conclude that quashal is
warranted.
It is undisputed that the two-day bench trial in this matter was
conducted on Friday, March 7, 2014 and Monday, March 10, 2014.
Following the parties’ submissions of proposed findings of fact and
conclusions of law, the trial court issued a written decision finding in favor of
Ms. Klemash and against Appellant. Order, 7/17/14, at 1. Notice pursuant
to Pa.R.C.P. 236 was given regarding the July 17, 2014 order on the same
date.
Rule 227.1 specifically provides that:
Rule 227.1 Post-Trial Relief
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or
nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision in the case
of a trial without a jury.
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Pa.R.C.P. 227.1(c)(1)-(2) (emphasis supplied). Thus, pursuant to Rule
227.1(c), Appellant was required to file his post-trial motions for relief on or
before Monday, July 28, 2014.
The trial court explained:
The Appellant argues that he filed his Motion for Post-Trial
Relief in a timely manner because the ten day period did not
begin to run until September 9, 2014, the date on which the trial
court issued an order prohibiting the escrow agent from
releasing the funds to [Ms. Klemash] during the pendency of the
appeal to Superior Court. Pennsylvania Rule of Civil Procedure
227.1 is clear that when a court issues a judgment after a bench
trial, a party must file a Motion for Post Trial Relief within ten
days after the filing of the decision. Pa.R.C.P. No. 227.1 (c).
Nowhere in the language of Rule 227.1 is there a reference to a
“final order.” In this case, the trial court filed its decision on July
17, 2014 when it issued Findings of Facts and Conclusions of
Law and ordered that [Ms. Klemash] had the right to the
proceeds from the sale of real estate. In contrast, the Order of
September 9, 2014, which dealt with the release of the funds
during the pendency of the appeal was merely ancillary to the
Order of July 17, 2014. Thus, the Order of July 17 was the order
for which Rule 227.1 required the Appellant to file a Motion for
Post-Trial Relief.
Trial Court Opinion, 3/20/15, at 5-6. We agree with the trial court.
Appellant asserts that the September 9, 2014 is the appropriate order
from which to calculate the time frame relative to his appellate rights.
However, as the trial court observed, “[t]he trial court also entered a series
of orders that prohibited the escrow agent from releasing the funds to [Ms.
Klemash] during the pendency of the appeal. Those orders, however, are
not the subject of this appeal. Moreover, those orders benefitted the
Appellant because the orders prohibited the escrow agent from releasing the
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funds to [Ms. Klemash] pending the Appellant’s appeal and thus, Appellant
was not aggrieved by those orders and would not have an independent basis
to appeal those orders.” Trial Court Opinion, 3/20/15, at 3 n.1. Indeed,
“[a] prevailing party is not ‘aggrieved’ and therefore, does not have standing
to appeal an order that has been entered in his or her favor.” In re Estate
of Pendergrass, 26 A.3d 1151, 1154 (Pa. Super. 2011); see Pa.R.A.P.
501.
Appellant challenges the trial court’s denial of his motion for
reconsideration of the trial court’s denial of his untimely post-trial motions.
In denying reconsideration, the trial court explained:
The Motion for Reconsideration at issue in this appeal
requests the court to reconsider its denial of the Motion for Post-
Trial Relief. The trial court denied the Motion for Post-trial Relief
because the Appellant filed it after he filed his Notice of Appeal.
Additionally, the Appellant filed his Motion for Post-Trial Relief
two months after the trial court entered the Order of July 17.
Finally, the trial court denied the Motion for Reconsideration
because there was no substantive merit to the issues raised in
the Motion for Post-Trial Relief.
More importantly, the Motion for Reconsideration does not
provide the trial court with any additional facts or new precedent
on which to reconsider its original order. Rather, the basic facts
and law remain. The Appellant failed to file a Motion for Post-
Trial Relief within ten days of the judgment and thus, waived all
issues on appeal. See Chalkey v. Roush, 569 Pa. 462. 805 A.2d
491 (2002); Pa.R.A.P. 302(a).
Trial Court Opinion, 3/20/15, at 5. Again, we agree with the trial court.
In Vietri ex rel Vietri v. Delaware Valley High School, 63 A.3d
1281 (Pa. Super. 2013), we explained:
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Our Supreme Court has characterized the purpose of nunc pro
tunc restoration of appellate rights as follows:
Allowing an appeal nunc pro tunc is a recognized exception
to the general rule prohibiting the extension of an appeal
deadline. This Court has emphasized that the principle
emerges that an appeal nunc pro tunc is intended as a
remedy to vindicate the right to an appeal where that right
has been lost due to certain extraordinary circumstances.
Generally, in civil cases an appeal nunc pro tunc is granted
only where there was fraud or a breakdown in the court's
operations through a default of its officers.
Union Elec. Corp. v. Bd. Of Prop. Assessment, Appeals & Review
of Allegheny Cty., 560 Pa. 481, 746 A.2d 581, 584 (2000)
(citations and internal quotation marks omitted).
Our standard of review over an order denying nunc pro tunc
restoration of a petitioner's appellate rights is deferent:
The denial of an appeal nunc pro tunc is within the
discretion of the trial court, and we will only reverse for an
abuse of that discretion. Freeman v. Bonner, 761 A.2d
1193, 1194 (Pa.Super.2000). In addition to the
occurrence of “fraud or breakdown in the court's
operations,” nunc pro tunc relief may also be granted
where the appellant demonstrates that “(1) [his] notice of
appeal was filed late as a result of nonnegligent
circumstances, either as they relate to the appellant or the
appellant's counsel; (2) [he] filed the notice of appeal
shortly after the expiration date; and (3) the appellee was
not prejudiced by the delay.” Criss v. Wise, 566 Pa. 437,
781 A.2d 1156, 1159 (2001).
Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075
(Pa.Super.2004) (citations modified). “An abuse of discretion
occurs when a trial court, in reaching its conclusions, overrides
or misapplies the law, or exercises judgment which is manifestly
unreasonable, or the result of partiality, prejudice, or ill will.”
U.S. Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa. Super. 2009).
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While in Vietri we allowed an untimely appeal where a misleading
Superior Court order caused appellant the loss of his appellate rights, we
nevertheless acknowledged that appellate rights would be waived in
situations akin, inter alia, to Chalkey v. Roush, supra. Vietri, 63 A.3d at
1286-1287.
In Chalkey, our Supreme Court stated:
Under Rule 227.1, a party must file post-trial motions at the
conclusion of a trial in any type of action in order to preserve
claims that the party wishes to raise on appeal. []
***
FN12: [] Furthermore, if a party is unsure whether the trial court
has entered an adjudication from which post-trial motions must
be filed, the party may always petition the trial court to
determine whether the trial court intended its order to be an
adjudication from which post-trial motions would follow.
Chalkey, 805 A.2d at 496.
Instantly, Appellant did not file timely post-trial motions following the
July 17, 2014 order. Nor did Appellant file a petition to clarify whether the
July 17, 2014 required such motion. Also, this is not a scenario where the
post-trial motions were untimely filed due to fraud, a breakdown in court
operations, as a result of extraordinary circumstances, or because the trial
court proceeding itself did not require such a filing.
Appellant further challenges the trial court’s denial of his motion for
nunc pro tunc relief, regarding which the trial court reasoned:
In this case, the Appellant's explanation for the late filing
of the Motion for Post-Trial Relief was that Appellant's “counsel
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reasonably determined that the Order granting or denying the
Motion for the Stay was the final Order or ‘decision’ in this
matter that would trigger the need for post-trial motions
pursuant to Rule 227.1.” (See Brief in Support of Motion for
Reconsideration or in the Alternative Motion for Post Trial Relief
Nunc Pro Tunc. p. 5).
In this case, the basis for the request for Nunc Pro Tunc
relief is the misinterpretation of Rule 227.1. This does not
qualify as a “non-negligent circumstance” and the trial court
properly denied the Motion for Nunc Pro Tunc Relief.
In addition, Appellant did not file the Post-Trial Motion
“shortly after the expiration date,” rather, Appellant filed the
motion almost two months after the expiration date. Appellant
also failed to demonstrate that [Ms. Klemash] would not be
prejudiced by nunc pro tunc restoration of appellate rights. See
Rothstein v. Polysciences, Inc., 853 A.2d 1072 (2004 ).
Therefore, the trial court properly denied nunc pro tunc
relief where there was no demonstrated breakdown in court
operations. The Appellant misinterpreted a rule of civil
procedure. The Appellant filed a Post-Trial Motion almost two
months after the deadline, and the Appellant failed to
demonstrate that [Ms. Klemash] would not be prejudiced by a
nunc pro tunc restoration of appellate rights. Since there is no
legal basis to grant the Appellant's request for nunc pro tunc
relief, the trial court properly denied the Motion for
Reconsideration.
Trial Court Opinion, 3/20/15, at 7. Based on applicable jurisprudence
discussed above, we find that the trial court’s analysis is supported by the
record.
We recently emphasized:
[T]he filing of post-trial motions ... ensure[s] that the trial
judge has a chance to correct alleged trial errors. This
opportunity to correct alleged errors ... advances the orderly and
efficient use of our judicial resources. First, appellate courts will
not be required to expend time and energy reviewing points on
which no trial ruling has been made. Second, the trial court may
promptly correct the asserted error. With the issue properly
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presented, the trial court is more likely to reach a satisfactory
result, thus obviating the need for appellate review on this issue.
Or if a new trial is necessary, it may be granted by the trial court
without subjecting both the litigants and the courts to the
expense and delay inherent in appellate review. Third, appellate
courts will be free to more expeditiously dispose of the issues
properly preserved for appeal....
D.L. Forrey & Associates, Inc. v. Fuel City Truck Stop, Inc., 71 A.3d
913, 919 (Pa. Super. 2013) (internal citations omitted).
Accordingly, finding that Appellant failed to file timely post-trial
motions for relief as required by Pa.R.C.P. 227.1, and discerning no abuse of
discretion or trial court error of law in denying Appellant nunc pro tunc relief
relative to his untimely post-trial motion, we quash Appellant’s appeal and
affirm the trial court’s order and resulting judgment in favor of Ms. Klemash.
Appeal quashed. Judgment affirmed. Case stricken from argument
list. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2015
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