J-A22019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PENNLYCO, LTD., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
INTERNATIONAL DEVELOPMENT
CORPORATION,
v.
SOUTHWESTERN ENERGY PRODUCTION
COMPANY,
No. 2114 MDA 2014
Appeal from the Order Entered April 8, 2014
In the Court of Common Pleas of Lycoming County
Civil Division at No(s): 12-02326
12-02428
BEFORE: BOWES, JENKINS AND PLATT,* JJ.
DISSENTING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 10, 2015
I agree with my learned colleagues that this matter became
appealable when Southwestern withdrew its counterclaim on October 4,
2014, the effect of which was to dispose of all claims among all parties.
Thus, the within appeal filed more than thirty days later is untimely.1
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1
IDC filed a motion to quash in which it asserted that the within appeal was
untimely because final judgment was entered on July 25, 2014, when it
discontinued its counterclaim and filed a praecipe for entry of judgment.
(Footnote Continued Next Page)
J-A22019-15
However, I believe the circumstances herein warrant a nunc pro tunc appeal,
and thus, I respectfully dissent.
A nunc pro tunc appeal is permitted when there was fraud or a
breakdown in the operations of the court. Vietri ex rel. Vietri v.
Delaware Valley High School, 63 A.3d 1281, 1284 (Pa.Super. 2013).
Additionally, “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 non[-
]negligent 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.” Id.
The purpose of nunc pro tunc restoration of appellate rights was
explained by our Supreme Court in Union Elec. Corp. v. Bd. of Prop.
Assessments, Appeals & Review of Allegheny Cty., 746 A.2d 581, 584
(Pa. 2000). It is intended to be “a remedy to vindicate the right to an
appeal where that right has been lost due to certain extraordinary
circumstances.” In civil cases, a nunc pro tunc appeal is generally granted
where there was fraud or breakdown in the court's operations through a
_______________________
(Footnote Continued)
However, Southwestern’s counterclaim was still pending at that time, and
thus, litigation in the consolidated action was not concluded as to all claims
and all parties. See Manlanchuk v. Sivchuk, 106 A.3d 789 (Pa.Super.
2014) (en banc) (declining to treat order disposing of claims against one of
two defendants as final under Pa.R.A.P. 341(b)(1) simply because the claims
against each defendant were initially filed separately and then consolidated
for trial pursuant to Rule 213(a)).
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default of its officers, or where an administrative body or court acts
“negligently, improperly or in a misleading way.” Id.
Herein, Pennlyco previously appealed the trial court’s grant of
summary judgment, but the appeal was quashed as interlocutory because
there were outstanding counterclaims. Thereafter, the parties met with the
trial court to discuss the best way to facilitate the finalizing of the
consolidated cases so that Pennlyco could properly appeal. Emails
exchanged following that conference indicate that all labored under the
impression that an appeal would not lie unless and until the trial court
expressly entered a final order. The trial court apparently did not dispel that
notion. To that end, the parties entered into a stipulation to the effect that
they had “prepared and agreed that a Supplemental Final Order” would be
entered by the court to enable Pennlyco to appeal. The Supplemental Final
Order entered by the trial court confirmed that pending counterclaims had
been withdrawn and that no issues remained, and ordered the Prothonotary
to enter judgment in favor of IDC and Southwestern. Supplemental Final
Order, 11/17/14, at 2. It expressly stated therein that the Order constituted
a final order pursuant to Pa.R.A.P. 341(b)(1). Id.
The appeal was filed within thirty days of the Supplemental Final
Order, which all parties believed at the time was a prerequisite to perfect an
appeal. Neither IDC nor Southwestern has alleged that it was prejudiced by
the delay. In these unusual circumstances, I believe a nunc pro tunc appeal
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is justified under Vietri ex rel. Vietri, supra, and I would remand for an
order reinstating Pennlyco’s appellate rights.
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