J-S26033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GREGORY BRENNAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KNIGHT BROS., INC., ENTERPRISE : No. 3458 EDA 2017
TE PRODUCTS PIPELINE COMPANY, :
AND ENTERPRISE PRODUCTS :
OPERATING, LLC :
Appeal from the Order Entered September 25, 2017
In the Court of Common Pleas of Delaware County Civil Division at
No(s): 2014-2045
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 05, 2018
Appellant Gregory Brennan appeals from the order entered by the Court
of Common Pleas of Delaware County denying his Motion for Acceptance of
the Filing of Post-Trial Motion Nunc Pro Tunc. We affirm.
On March 6, 2014, Appellant initiated the instant action by filing a
complaint against Knight Brothers, Inc. and Enterprise Product Partners, LP to
seek damages for injuries Appellant sustained on April 4, 2012 when a mobile-
tracked, self-propelled, brush chipping machine struck Appellant. At that
time, Appellant was working as a subcontractor for Knight Brothers, Inc., a
company that had been hired to clear trees and brush from the right of way
over an oil-and-gas pipeline that is owned by Enterprise TE Products Pipeline
Company and operated by Enterprise Products Operating LLC.
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* Former Justice specially assigned to the Superior Court.
J-S26033-18
Enterprise Product Partners, LP filed preliminary objections contending
that Appellant failed to state a claim for relief against it as it claimed it had no
ownership or interest in the right of way where the accident occurred. After
the objections were overruled, Enterprise Product Partners, LP, filed an
answer, claiming that it was not a proper defendant to the instant action.
On April 24, 2015, the trial court granted Appellant’s motion to amend
his complaint to substitute Enterprise TE Products Pipeline Company and
Enterprise Products Operating LLC (collectively “Appellees”) as defendants in
place of Enterprise Products Partners, LP.
The parties proceeded to a bifurcated trial in which the parties agreed
the trial court would first resolve issues related to defenses including statutory
immunity and the relevant statute of limitations and then hold a jury trial to
assess issues of negligence and damages.
After the bench trial commenced on February 23, 2017, the trial court
issued an order on February 28, 2017, finding in favor of Appellees and against
Appellant. The docket shows the order was filed on March 3, 2017 and
contains a notation that notice of the entry of the order was issued to all
counsel on March 3, 2017, pursuant to Pa.R.C.P. 236.
On March 17, 2017, Appellant filed a notice of appeal to this Court, which
was docketed at 975 EDA 2014. Appellees attempted to submit a praecipe for
the entry of judgment pursuant to Pa.R.C.P. 227.4, based on Appellant’s
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failure to file a timely post-trial motion.1 However, the Delaware County Office
of Judicial Support rejected this filing as it was not accompanied by the
requisite filing fee. Nevertheless, the trial court noted that Appellees put
Appellant on notice of his failure to file post-trial motions by sending copies of
the praecipe to Appellant through the U.S. Mail and electronic mail.
Thereafter, on March 24, 2017, Appellant filed a Motion for Post-Trial
Relief. On March 27, 2017, Appellee Knight Brothers resubmitted a praecipe
for judgment, which was entered in favor of Appellees against Appellant on
that same day. On March 28, 2017, Appellee Enterprise filed a motion to
strike Appellant’s Post-Trial Motion as untimely filed. On April 3, 2017,
Appellee Knight Brothers filed a similar motion. On April 20, 2017, this Court
entered a per curiam order, quashing the appeal at 975 EDA 2017 due to the
pendency of Appellant’s Post-Trial Motion in the lower court.
After holding oral argument, the trial court entered an order on June 7,
2017, granting Appellees’ motions to strike Appellant’s post-trial motion as
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1 The relevant provisions of Pa.R.C.P. 227.4 provide as follows:
In addition to the provisions of any Rule of Civil Procedure or Act
of Assembly authorizing the prothonotary to enter judgment upon
praecipe of a party, the 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
(a) no timely post-trial motion is filed;
Pa.R.C.P. 227.4(1)(a).
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untimely filed. Emphasizing that Pa.R.C.P. 227.1(c)(2) requires an aggrieved
party to file a post-trial motion within ten days of the trial court’s verdict or
decision, the lower court observed that Appellant’s post-trial motion from its
March 3, 2017 order was not docketed until March 24, 2017. The trial court
also noted that Appellant had not requested to file a post-trial motion nunc
pro tunc.
On June 15, 2017, Appellant filed a motion for the acceptance of the
filing of a post-trial motion nunc pro tunc and a motion for reconsideration of
the trial court’s June 7, 2017 order. For the first time, Appellant alleged that
he had not received notice of the trial court’s March 3, 2017 order finding in
favor of Appellees until March 13, 2017.
On June 26, 2017, Appellant subsequently filed another notice of appeal,
which was docketed at 2033 EDA 2017. By order dated July 5, 2017, the trial
court vacated its June 7, 2017 order striking Appellant’s post-trial motion as
untimely and scheduled argument on Appellant’s motion for reconsideration
and his motion to file a post-trial motion nunc pro tunc.
Thereafter, on August 1, 2017, this Court entered a per curiam order,
quashing the appeal at 2033 EDA 2017, reasoning that the trial court’s order
vacating its June 7, 2017 order and granting reconsideration rendered the
notice of appeal at this docket to be inoperative. See Pa.R.A.P. 1701(b)(3).
On September 25, 2017, the trial court denied both of Appellant’s
pending motions and reinstated its earlier order striking Appellant’s untimely
post-trial motion. Appellant filed a timely appeal and complied with the trial
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court’s direction to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review on appeal:
1. Did the trial court abuse its discretion in striking the Post-Trial
Motion as not timely, as (1) the late filing of the Post-Trial
Motion was due to a delayed notification to the Appellant of the
Court’s Order of February 28, 2017 by the Office of Judicial
Support; (2) the failure of the Office of Judicial Support to
“immediately give written notice” to [Appellant’s] counsel in
violation of Pa.R.C.P. 236; and (3) the extraordinary
circumstance of a breakdown and failure in the Office of Judicial
Support’s operations in the manners stated in (1) and (2)[?]
2. Did the trial court abuse its discretion by failing to be impartial
in its excusing of material errors on the part of the Delaware
County Office of Judicial Support and of both [Appellees] and
arbitrarily failing to act in the same manner and with the same
degree of leniency towards [Appellant?]
Appellant’s Brief, at 4.
This Court reviews a trial court’s denial of a motion for leave to file post-
trial motions nunc pro tunc under an abuse of discretion standard. D.L.
Forrey & Assocs., Inc. v. Fuel City Truck Stop, Inc., 71 A.3d 915, 918
(Pa.Super. 2013) (citing Lenhart v. Cigna Companies, Inc., 824 A.2d 1193,
1195 (Pa.Super.2003)). Further, this Court has provided:
[T]he standard of review applicable to the denial of an
appeal nunc pro tunc is whether the trial court abused its
discretion. An abuse of discretion is not merely an error of
judgment but is found where the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or
ill will as shown by the evidence or the record.
Freeman v. Bonner, 761 A.2d 1193, 1194–1195 (Pa.Super.
2000) (citations omitted).
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Allowance of an appeal nunc pro tunc lies at the sound
discretion of the Trial Judge. More is required before such
an appeal will be permitted than the mere hardship imposed
upon the appellant if the request is denied. As a general
matter, a Trial Court may grant an appeal nunc pro tunc
when a delay in filing an appeal is caused by extraordinary
circumstances involving fraud or some breakdown in the
court's operation through a default of its officers. Where an
appeal is not timely because of non-negligent
circumstances, either as they relate to appellant or his
counsel, and the appeal is filed within a short time after the
appellant or his counsel learns of and has an opportunity to
address the untimeliness, and the time period which elapses
is of very short duration, and appellee is not prejudiced by
the delay, the court may allow an appeal nunc pro tunc.
McKeown v. Bailey, 731 A.2d 628, 630 (Pa.Super. 1999)
(citations omitted). Our Supreme Court has made it clear that the
circumstances occasioning the failure to file an appeal must not
stem from counsel's negligence or from a failure to anticipate
foreseeable circumstances. Criss v. Wise, 566 Pa. 437, 781 A.2d
1156 (2001).
Rule 227.1(c) of the Pennsylvania Rules of Civil Procedure
provides as follows:
(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 or
adjudication in the case of a trial without jury or equity
trial.
.....
Pa.R.C.P. 227.1(c).
The Pennsylvania Supreme Court has stated that the filing
of post-trial motions is mandatory if a litigant wishes to
preserve issues for appellate review. See L.B. Foster Co.
v. Lane Enterprises, Inc., 551 Pa. 307, 710 A.2d 55
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(1998) (“Pa.R.Civ.P. 227.1 requires parties to file post-trial
motions in order to preserve issues for appeal. If an issue
has not been raised in a post-trial motion, it is waived for
appeal purposes. See Benson v. Penn Central
Transportation Company, 463 Pa. 37, 342 A.2d 393
(1975) and Commonwealth v. Metz, 534 Pa. 341, 633
A.2d 125 (1993)”); Lane Enterprises, Inc. v. L.B. Foster
Co., 551 Pa. 306, 710 A.2d 54 (1998) (same).
Diamond Reo Truck Co. v. Mid–Pacific Industries, Inc., 806
A.2d 423, 428 (Pa.Super.2002).
Our Court has consistently refused to entertain appeals from
orders or verdicts following nonjury trials in actions at law when
no post-trial motions have been filed. See Krystal Development
Corp. v. Rose, 704 A.2d 1102, 1103 (Pa.Super. 1997) (without
post-trial motions after a nonjury trial, there are no issues
preserved for appellate review).
Lenhart v. Cigna Companies, 824 A.2d 1193, 1195–96 (Pa.Super. 2003).
In the instant case, Appellant concedes that his Post-Trial Motion was
untimely filed. As noted above, Pennsylvania Rule of Civil Procedure 227.1
requires that a party must file a post-trial motion within ten days of notice of
the filing of the decision or adjudication in his bench trial. See Lenhart, 824
A.2d at 1197 (recognizing that the proper procedure is for a party to file post-
trial motions following the trial court’s decision or verdict). As the docket
indicates that notice of the trial court’s verdict was sent to all parties on March
3, 2017, Appellant’s Post-Trial Motion docketed on March 24, 2017 is untimely.
Even assuming arguendo that the trial court believed Appellant’s
allegation that he did not receive notice of the trial court’s decision until March
13, 2017, Appellant still failed to file a post-trial motion within the required
ten-day period which would have ended on March 23, 2017.
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Moreover, we agree with the trial court’s finding that Appellant has not
shown there were extraordinary circumstances to excuse the untimely filing
of his post-sentence motion. See Lenhart, supra. After receiving notice of
the trial court’s decision in favor of Appellees, Appellant chose to file a notice
of appeal instead of a post-trial motion. Thereafter, Appellant received notice
on March 21, 2017 that Appellees sought to enter judgment against Appellant
for failing to file a post-trial motion. Appellant subsequently filed an untimely
post-trial motion on March 24, 2017. In this post-trial motion, Appellant did
not allege that he lacked timely notice or request nunc pro tunc relief.
Moreover, we are not persuaded by Appellant’s attempt to place blame
on the trial court for his failure to comply with our procedural rules. Despite
Appellant’s allegations to the contrary, there is no evidence of a breakdown in
the Court’s system that prevented him from filing a timely post-trial motion.
The docket contains a notation that Appellant was sent proper notice of the
trial court’s decision in favor of Appellees. As mentioned above, even if we
assume for the sake of argument that Appellant received delayed notice,
Appellant admits that he failed to file a post-trial motion within ten days of
the date that he allegedly received proper notice.2
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2 We also find no merit in Appellant’s contention that he is being unfairly
penalized for failing to file an untimely post-trial motion when the trial court
excused a “material error” of Appellees. Appellant’s Brief, at 4. First, as
Appellant did not raise this contention in the lower court, it is waived.
Pa.R.A.P. 302(a) (issues not raised in lower court are waived on appeal).
Second, Appellees were not required to file a praecipe for the entry of
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Appellant was required by Rule 227.1 to file post-trial motions within
ten days of the trial court’s decision to preserve any issues for appellate
review. We decline Appellant’s request to be excused from complying with
these procedural rules. “The grant of nunc pro tunc relief is not designed to
provide relief to parties whose counsel has not followed proper procedure in
preserving appellate rights.” Lenhart, 824 A.2d at 1197–98.
For the foregoing reasons, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/18
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judgment based on Appellant’s failure to file a timely post-trial motion, but
were permitted to do so to move the litigation process forward. See
Comments to Pa.R.C.P. 227.4. In contrast, our Rules of Civil Procedure
require Appellant to file a post-trial motion to preserve issues for appeal. See
Lenhart, supra.
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