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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EUGENE W. SCHERICH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
THOMAS E. BLANDFORD, SUCCESSOR
TRUSTEE OF HILLMAN A. TRUST AND
HILLMAN B. TRUST; GLORIA J.
HOGSETT, INDIVIDUALLY, AND AS
ADMINISTRATRIX OF THE ESTATE OF
JOHN THOMAS HOGSETT, DECEASED,
AND DOING BUSINESS AS LUZERNE
RESOURCES DEVELOPMENT COMPANY,
FOREE OIL COMPANY, AND JESMAR
ENERGY, INC.
No. 129 WDA 2015
Appeal from the Order December 31, 2014
In the Court of Common Pleas of Greene County
Civil Division at No(s): A.D. No. 957 of 2013
BEFORE: SHOGAN, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 30, 2015
Eugene W. Scherich appeals from the order entered December 31,
2014, in the Court of Common Pleas of Greene County, denying him relief on
his motion to remove nonsuit.1 In this timely appeal, Scherich raises five
arguments, which are largely summarized as a claim the trial court erred in
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1
The appeal properly lies from entry of judgment, not the denial of the
motion to remove nonsuit. Technically, this appeal was premature.
However, judgment was entered on March 13, 2015. Therefore, we proceed
to the merits of this appeal.
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failing to recognize he did not receive proper notice of Defendants’
emergency motion prior to the entry of the nonsuit. Following a thorough
review of the submissions by the parties, relevant law, and the certified
record, we reverse and remand for a hearing on Defendants’ motion to
vacate Scherich’s praecipe to discontinue.
There appears to be a tortured history to this matter, during which
Scherich has attempted to obtain title to certain property known as the
Gateway Mine. Defendants assert Scherich has filed prior cases in
Westmoreland County, Fayette County, and Greene County pursuing this
goal. This action allegedly represents Scherich’s second attempt in Greene
County.
The current action, a Complaint In Action To Quiet Title, was filed on
October 10, 2013, and Scherich was represented by David F. Pollock,
Esquire. Trial on the matter was eventually scheduled for December 18,
2014. Scherich came to believe that his counsel had a conflict of interest,
and approximately one month before trial, on November 21, 2014, following
a hearing on Attorney Pollock’s motion to withdraw and for continuance,
Pollock was allowed to withdraw, but no continuance was granted.
On December 17, 2014, at approximately 9:40 a.m., Scherich, acting
pro se, filed a Preacipe to Discontinue his lawsuit. Scherich served the
praecipe upon opposing counsel via email and facsimile transmission. Both
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the email and facsimile were sent from the law offices of Hook and Hook.2
This law firm had apparently represented Scherich in other matters, but had
not entered an appearance for Scherich in the instant matter. At the
November 21, 2014 hearing, Attorney Pollock asserted that Scherich’s
current counsel David Hook, Esq., had requested on Scherich’s behalf, that
Pollock withdraw. Pollock also stated that Hook was actively representing
Scherich in the Fayette County action.
Upon receipt of the praecipe to discontinue, the Defendants filed a
joint emergency motion to strike the discontinuance. Paragraph 7 of the
proposed order stated: “The trial shall commence forthwith as scheduled at
9:00 a.m. on December 18, 2014.” See Motion and Order, 12/18/2014.
The certificate of service for the emergency motion indicates copies of the
document were served upon Scherich via first class mail, email and facsimile
transmission on December 17, 2014.
On December 18, 2014, counsel for Defendants appeared in court and
argued the emergency motion to vacate the discontinuance. Regarding
notice to Scherich, counsel on behalf of Defendant Blandford, Charles B.
Watkins, Esquire, stated:
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2
The header on the email indicates it originated from the email account of
Kathleen Demchak at hookandhook.com. The facsimile cover sheet was
amended to replace “Hook and Hook” with “Eugene Scherich.” However, the
fax origination number at the top of the transmission indicates it came from
the Hook and Hook fax machine.
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I faxed and e-mailed a copy of this petition to Mr. Hook’s office
with instructions to – what the requests are basically, to deliver
it to Mr. Scherich.
So I think at least Mr. Hook knows that this petition is being
presented this morning.
N.T. Hearing, 12/18/2014, at 7.
Additionally, counsel for Defendant Hogsett stated:
Mr. Hook could have been here to argue this, Mr. Scherich could
have been here to argue this. Somebody should have been here
and then asked you to issue a rule, but that not having been
done in light of it being an emergency joint petition, knowing it
was [being] presented today, they faxed it to us, we faxed it
back to them.
We gave then as much notice as they gave us.
Id. at 12.
The trial court was initially inclined to issue a Rule to Show Cause
regarding the Defendants’ motion to vacate. This brief exchange took place:
TRIAL COURT: Let me see the petition [motion to vacate],
please?
Well, Rule 229(c) says upon petition and after notice may strike
a – so why don’t we do this. I will issue a Rule to Show Cause
returnable two weeks from tomorrow – no, that won’t work,
returnable December 31st, at 9:00 a.m., and direct that he show
cause why this discontinuance should not be with prejudice.
MR. WATKINS: Would that - the only issue with that, Your
Honor, is that doesn’t allow us much time to address whatever
creative reasons are advanced.
Id. at 10-11.
The gist of the Defendants’ argument was that Scherich was playing
games with the system by discontinuing his action on the eve of trial, when
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a continuance request had been denied on November 21, 2014. Without
commentary, the trial court accepted the Defendants’ assertion of service
and entered orders vacating the discontinuance and entering a nonsuit
based upon Scherich’s failure to be present and ready for trial, as scheduled.
On December 29, 2014, Scherich filed a motion to vacate the two
orders3 entered on December 18, 2014. Scherich claimed the trial court
erred in entering the orders because he had not been timely served with the
emergency motion. The trial court denied Scherich’s motion on the ground
he had not presented good cause for having failed to appear on December
18, 2014. This timely appeal follows.
We begin by noting that Scherich presented no evidence when the
case was called to trial, as originally scheduled, on December 18, 2014.
Accordingly, a compulsory nonsuit was entered. Absent any other issues,
the order granting the nonsuit would be proper.
However, there remains the underlying issue of whether Scherich
received proper notice of the emergency motion. If Scherich did not receive
notice, then the trial court erred in determining Scherich did not have a
satisfactory excuse for failing to appear. Therefore, the ultimate issue
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3
Specifically, there were two orders entered on December 18, 2014, that
separately vacated the discontinuance and entered a nonsuit. Scherich’s
motion to vacate these orders was docketed on December 29, 2014, but was
served upon the Defendants on December 24, 2014.
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before us is whether the Defendants provided proper notice to Scherich of
their intention to present the motion to vacate Scherich’s discontinuance.
Our review of the certified record leads us to conclude there were
multiple problems with Defendants’ service and notice of the emergency
motion to vacate Scherich’s discontinuance.
Initially, Scherich argues that Greene County local rules require a
party to give 24-hour notice of the presentation of such a motion.
Specifically, Scherich states:
15. As the Defendants characterize their Petition to Strike as an
“Emergency Joint Petition,” Greene County Local Court Rule
G206.4(c)(4) applies. It states in part: “If a need for emergency
relief is sought, the request shall be presented to the motions
judge, with notice to opposing counsel, if known, and
unrepresented parties of the date and time of presentation in
accordance with Local Rule G208.3(a).”
16. “Rule G208.3(a): Disposition of Motion” requires notice to be
received by counsel or an unrepresented party “at least 24 hours
in advance of presentation to the court.”
Scherich’s Motion to Vacate Two Orders of December 18, 2014, 12/29/2014,
at ¶¶15-16.
The Defendants’ joint answer to this motion does not deny the
substantive content of the local rule as stated by Scherich. However, the
Defendants argued:
15. Paragraph 15 states a conclusion of law to which no
response is required. By way of further answer, however,
Defendants aver that said rule is applicable to the instant
situation. To the contrary, [Scherich] filed and served the
Praecipe to Discontinue less than 24 hours before the
commencement of trial. Accordingly, it was legally and factually
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impossible for Defendants to serve the Joint Emergency Petition
upon Plaintiff within 24 hours of the necessary presentment of
the Joint Emergency Petition.
Defendants’ Joint Answer to Plaintiff’s Motion, 12/30/2014, at ¶ 15.4
It is factually true that given the timing of Scherich’s discontinuance,
less than 24 hours before the scheduled start of trial, the Defendants could
not reply and serve Scherich their motion to vacate 24 hours prior to the
scheduled start of the trial. What the Defendants have not demonstrated is
why it was necessary to present the motion at the time trial had been
scheduled to start. The Defendants have presented no rule, no case law,
nor any reason that compelled their motion to vacate the discontinuance be
heard on the morning of December 18, 2014. Accordingly, the Defendants’
assertion that Local Rules 206.4(c)(4) and 208.3(a) do not apply is
unavailing. The Defendants sought emergency relief and, pursuant to local
rules, were required to provide Scherich with a minimum of 24 hours’ notice.
They did not.
Second, there is no indication that emergency relief was necessary or
appropriate. Pennsylvania Rule of Civil Procedure 229 contains no time limit
by which a petition to strike a discontinuance must be filed. Such matters
are left to the discretion of the court. In Hopewell v. Hendrie, 562 A.2d
899 (Pa. Super. 1989), the successful petition was not filed until one month
after the discontinuance. In Nastasiak v. Scoville Enterprises, Ltd., 618
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4
Paragraph 16 is identical in substance to Paragraph 15.
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A.2d 472 (Pa. Super. 1993), a panel of our Court determined the trial court
erred in refusing to strike a discontinuance due to a 5-6 month delay in filing
the petition to vacate. In short, there was no legally compelling reason for
the Defendants’ motion to vacate to be heard on December 18, 2014.
Next, as indicated in Paragraph 15 of Scherich’s motion to vacate,
pursuant to Local Rule 206.4(c)(4), notice is required to inform the recipient
of the date and time of presentation of a request for emergency relief. The
certified record does not contain any statement that the emergency petition
was to be presented on the morning of December 18, 2014. We do
recognize that the proposed order infers the timing of the presentation of
the motion in Paragraph 7, which states: “The trial shall commence forthwith
as scheduled at 9:00 a.m. on December 18, 2014.” As a general
proposition, however, we do not believe that the required notice of date and
time of presentation of an emergency motion should be inferred in the order,
especially when the proposed presentation of the motion is less than the
required 24 hours.5
Fourth, the Pennsylvania Rules of Civil Procedure provide the
requirements for service of legal papers other than original process, by
facsimile transmission. Rule of Civil Procedure 440 states, in relevant part:
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5
We recognize that it is possible that a date and time was conveyed in the
notices, perhaps in a cover letter. But, as noted, that information does not
appear in the certified record.
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2(i) If there is no attorney of record, service shall be made by
handing a copy to the party or by mailing a copy to or leaving a
copy for the party at the address endorsed on an appearance or
prior pleading or the residence or place of business of the party,
or by transmitting a copy by facsimile as provided by subdivision
(d).
****
(d)(1) A copy may be served by facsimile transmission if the
parties agree thereto or if the telephone number for facsimile
transmission is included on an appearance or prior legal paper
filed with the court.
Pa.R.C.P. 440(a)(2)(i), (d)(1).
The certified record in this matter contains no proof or assertion that
the parties agreed to service by facsimile transmission. Service of the
praecipe to discontinue by facsimile to the Defendants was proper because
their facsimile telephone numbers appear on documents filed with the court
prior to the service of the praecipe. However, no facsimile number appears
on any filed document regarding Scherich personally. The rules of civil
procedure make no allowance for return service by facsimile. Simply
because Scherich used a facsimile machine to serve the Defendants, does
not, by rule, allow return service in the same manner. The facsimile
machine used by Scherich in this matter was located in the office of an
attorney who had represented Scherich in other matters. However, Scherich
was not, at the relevant time, represented by any counsel in the instant
matter. The Defendants have provided no case law demonstrating service to
an attorney representing a party in another matter constitutes proper
service to that person in any matter.
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Fifth, the Pennsylvania Rules of Civil Procedure prove similar rules for
service by email. In relevant part, Pa.R.C.P. 205.4 states:
(g)(1) Copies of all legal papers other than original process filed
in an action or served upon any party to an action may be
served
(i) as provided by Rule 440 or
(ii) by electronic transmission, other than facsimile
transmission, if the parties agree thereto or an electronic
email address is included on an appearance or prior legal
paper filed with the court in the action. A paper served
electronically is subject to certifications set forth in
subdivision (b)(3).
Pa.R.C.P. 205.4(g)(1)(i)-(ii).
The certified record is also devoid of any agreement of service by
email, and no email address for Scherich is found on any paper filed with the
court prior to the filing of the Defendants’ motion to vacate. As with the rule
for service by facsimile transmission, there is no provision for reciprocal
e-mail service absent compliance with Pa.R.C.P. 205.4(g)(1)(ii).
Sixth, as noted above, the Rules of Civil Procedure provide for service
by hand to an unrepresented party. See Pa.R.C.P. 440(a)(2)(i).
Defendants served their joint answer to Scherich’s December 29, 2014,
motion to vacate the orders of December 18, 2014 by hand as well as by
first class mail, facsimile and e-mail.6 The certified record contains no
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6
At this point, Scherich was represented by counsel. His e-mail address and
fax number were both on his appearance. Accordingly, service through
those methods was proper.
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explanation why the Defendants’ December 17, 2014 joint emergency
motion to vacate the discontinuance was not also served by hand.
In light of the above, we must conclude that the Defendants did not
properly serve Scherich with the notice of the emergency motion to vacate
the discontinuance. Because of that, the trial court erred in determining that
Scherich had not presented sufficient reason why he did not appear in court
on December 18, 2014. The certified record demonstrates that Scherich
discontinued his action and would have no reason to be in court for the trial
scheduled for December 18, 2014. Even though Scherich may have been
aware of the emergency motion to vacate, Defendants cannot prove he
received notice as required by the Rules of Civil Procedure. Accordingly, the
trial court erred in both vacating the discontinuance and in subsequently
entering the nonsuit.
Because the trial court erred in denying Scherich’s petition to vacate
the orders of December 18, 2014, we believe the appropriate remedy is to
remand this action for a hearing on the Defendants’ emergency motion. This
returns the matter to the posture that will allow the Defendants to present
argument regarding their belief that Scherich was attempting to play games
with the system and attempting to evade an order denying him any further
continuances. Scherich or new counsel will be able to explain to the court
his intentions in discontinuing his lawsuit. The trial court will then be able to
render a fully informed decision based on the requirements in Pa.R.C.P.
229(c), i.e., specifically determining whether Scherich’s discontinuance
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would subject the Defendants to “unreasonable inconvenience, vexation,
harassment, expense or prejudice.” Id.
Order reversed, judgment vacated. This matter is remanded to the
trial court for action consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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