J-S60004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMUNITY BANK, N.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL EDWARD JOHNSTON, JR. :
:
Appellant : No. 460 MDA 2019
Appeal from the Judgment Entered September 17, 2018
In the Court of Common Pleas of Bradford County Civil Division at No(s):
2016-CV-0187
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED: FEBRUARY 4, 2020
Appellant, Carl Edward Johnston, Jr., appeals pro se from the judgment
entered against him on September 17, 2018, in the Court of Common Pleas
of Bradford County. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
Plaintiff [Community Bank, N.A.] filed its Complaint, which
attached various documents, on August 29, 2016. Plaintiff’s claim
arises out of [Appellant’s] failure to satisfy a car loan pursuant to
the terms of a note and security agreement. See Complaint.
Subsequent to filing, Plaintiff made several attempts to
serve a copy of the Complaint upon [Appellant], all of which were
unsuccessful. See Sheriff’s Return of Service filed September 12,
2016 and August 7, 2017.
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* Retired Senior Judge assigned to the Superior Court.
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In response to the failed attempts at service, Plaintiff filed
Praecipes to Reinstate Complaint on July 5, 2017 and March 26,
2018. The Complaint was duly reinstated in each instance.
A copy of the reinstated Complaint was eventually served
upon [Appellant] at the Bradford County Correctional Facility on
March 29, 2018 by handing him a copy of the document. See
Sheriff’s Return of Service filed April 9, 2018.
[Appellant] responded to the reinstated Complaint by hand-
written letter, filed on April 4, 2018, in which he did not address
any of the factual averments set out in the reinstated Complaint,
but offered generalized statements as to his financial situation, his
desire to acquire the services of a public defender, his current
address and, most particularly, his intention to contest the civil
action against him. See Motion for Summary Judgment at Exhibit
B.
Plaintiff asserts in the Motion for Summary Judgment
underlying the instant matter that Requests for Admissions and
Production of Documents, in accordance with Pa. R.C.P. Nos. 4001
and 4014, were served upon [Appellant] “on or around” April 30,
2018. A Certificate of Service memorializing the service is of
record. Id. at paragraph 5, and Exhibit C.
On June 4, 2018, approximately 35 days after the claimed
service of the Requests for Admissions and Production of
Documents, [Appellant] responded to the discovery request by
means of a hand-written letter purported by [Appellant] to be “a
timely submission to the plaintiff’s request pursuant to Pa. R. Civ.
[sic] P. 4014 and 4001 et seq.” Id. at Exhibit D.
In [Appellant’s] responsive letter, he declares his inability to
furnish discovery due to his current status as a prisoner at the
Bradford County Correctional Facility in Troy, Pennsylvania.
Additionally, the letter sets out [Appellant’s] request for, inter alia,
“the Plaintiff’s cooperation in obtaining a stay of all proceedings”
on the grounds that he has “every intent to honor any obligation
I have” after his criminal matters are concluded. Id. at Exhibit D.,
paragraphs 1., 4., 5., and 7.
[Appellant’s] responsive letter does not specifically address
any of the demands for admissions or discovery placed upon him
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by Plaintiff in the Requests for Admissions and the Production of
Documents.
Plaintiff filed its Motion for Summary Judgment with Notice
to Plead, and a Brief in Support of the Motion, on July 16, 2018;
there is nothing of record indicating that [Appellant] filed a written
response to the Motion for Summary Judgment within 30 days as
required by Pa. R.C.P. No. 1035.3.
The record of the case includes Certificates of Service, dated
July 12, 2019, showing that Plaintiff served [Appellant] with copies
of the Motion for Summary Judgment and the Brief in Support of
the Motion, together with a Motion for Argument, at the Bradford
County Correctional Facility, Troy, Pennsylvania, by first class
mail.
On July 19, 2018, the [c]ourt scheduled argument upon
Plaintiff’s Motion for Summary Judgment for September 14, 2018,
at 10:00 a.m.
In its scheduling Order, the [c]ourt directed [Appellant] to
file a brief in support of his position at least five days prior to
argument; however, there is no evidence of record showing that
[Appellant] complied with this directive.
On August 16, 2018, Plaintiff filed an Affidavit of Service
indicating that Plaintiff served upon [Appellant] a copy of the
Order scheduling argument for September 14, 2018, and, again,
copies of (i) Plaintiff’s Motion for Argument, (ii) Plaintiff’s Motion
for Summary Judgment, and (iii) Plaintiff’s Brief in Support of the
Motion for Summary Judgment.
Plaintiff’s Motion for Summary Judgment was granted on
September 14, 2018, and a judgment was filed against
[Appellant] in the amount of $13,427.00 plus interest, if any, and
costs.[1]
Trial Court Opinion, 5/2/19, at 1-3.
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1 The order entering judgment was filed on September 17, 2018.
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Appellant filed a notice of appeal that was docketed on November 30,
2018. The trial court and Appellant complied with Pa.R.A.P. 1925(a). On
appeal, Appellant presents the following issue for our review: “Does
[Appellant] have a valid claim for failing to respond to the Notice of a Motion
for Summary Judgment with Notice to Plead, and a Motion for Argument[?]”
Appellant’s Brief at 4.
We first determine whether we have jurisdiction to entertain this appeal.
Judgment in the instant matter was entered on September 17, 2018.
Appellant’s notice of appeal was dated November 26, 2018, and entered on
the docket on November 30, 2018. Accordingly, the appeal is facially
untimely. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule,
the notice of appeal . . . shall be filed within 30 days after the entry of the
order from which the appeal is taken.”). Thus, on May 6, 2019, this Court
issued a rule to show cause directing Appellant to show cause “why this appeal
should not be quashed as having been filed untimely on November 30, 2018,
greater than 30 days after entry and notice of the summary judgment order.”
Order, 5/6/19, at 1.
Appellant filed a response that was docketed on May 13, 2019. In it,
Appellant asserted that “he has been in a State Correction Institute since July
5, 2018.” Response to Rule to Show Cause, 5/13/19, at 1. He further averred
that “his legal mailing address has been SCI Benner Township, 301 Institution
Drive, Bellefonte Pa 16823 since August of 2018.” Id. Appellant maintained
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that he “did not receive any legal papers from Bradford County Courts via
legal mail, Bradford County Courts are well aware of the proper procedure to
send legal mail to an inmate at a SCI Benner Institution.” Id. He further
asserted that after receiving the “legal papers” in November of 2018, he did
meet the thirty-day time-frame to file his appeal. Id.
It appears from the record that Appellant has been incarcerated during
the entirety of this legal proceeding, although we are unable to determine
when his physical location changed. As noted, in his response to the rule to
show cause, Appellant asserted that his legal mailing address has been SCI
Benner Township, 301 Institution Drive, Bellefonte, PA 16823, since August,
of 2018. The order entering judgment indicated that notice should be mailed
to Appellant at “Bradford County Correction Facility; 15927 Route 6; Troy,
Pennsylvania 16947.” Order, 9/17/18, at 1. The docket entry for that order,
however, indicated that the order was sent to “[Appellant,] 107 North Elmira
St.; Athens, PA 18810.” The record also includes an envelope addressed to
Appellant at the Bradford County Correction Facility bearing a post mark of
September 17, 2018, which was marked “return to sender.” The envelope
included the September 17, 2018 order. Although Appellant asserted that he
subsequently received these “legal papers in November 2018,” he did not
explain how he received these documents at that time. Response to Rule to
Show Cause, 5/13/19, at 1. The record reflects that Appellant’s notice of
appeal was dated November 26, 2018, and the accompanying envelope bears
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a date stamp of November 27, 2018.2 Appellant’s notice of appeal was
docketed on November 30, 2019.
Accordingly, it appears that Appellant did not receive timely notice of
the September 17, 2018 entry of judgment due to a breakdown in the court’s
operations. This Court has found the delay in filing an appeal excusable
because of a breakdown in the court’s operations. Nagy v. Best Home
Services, Inc., 829 A.2d 1166, 1168 (Pa. Super. 2003). Thus, it is possible
that Appellant’s notice of appeal could be deemed timely filed if we were able
to determine with certainty, which we are unable to do, when Appellant
received notice of this judgment. However, even if Appellant’s notice of appeal
was deemed timely filed, he would be entitled to no relief on his claim.
By order entered January 9, 2019, the trial court directed Appellant to
file a Pa.R.A.P. 1925(b) statement. Appellant filed his Pa.R.A.P. 1925(b)
statement on March 18, 2019. In his statement, Appellant made the following
five assertions, which we restate here verbatim:
1. The Defendant avers/believes that by law he has never been
legally served a notice or has signed an acknowledgement that
there was a judgment made against him from Community Bank,
N.A 45-49 Court Street Canton, New York 13617.
2. Defendant avers that he believes there is insurance to cover
the legal action brought against him by Community Bank, N.A 45-
49 Court Street Canton, New York 13617.
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2 We note that in Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super. 2001),
this Court held that the prisoner mailbox rule applies to all pro se filings by
incarcerated litigants, including civil matters.
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3. Defendant avers he has made several attempts to contact Mr.
Sheils the attorney for Plaintiff concerning this matter and the
courts. The Courts and the Law Office of Sheils Associates; P.C
108 North Abington Road, Clark Summit, pa 18411 has repeatedly
sent mail to 107 N. Elmira St Athens Pa. 18810 not his legal
residence.
4. Defendant avers he requests to be notified of any pending
proceedings and to be present by phone or via video due to his
incarceration at SCI Benner Township, 301 Institution Drive,
Bellefonte Pa, 33733 until his release when he may attend in
person.
5. Defendant requests a stay of all proceedings until his release
from custody so he may retrieve the documents needed that he
has in his files that are in storage.
Pa.R.A.P. 1925(b) Statement, 3/18/19, at 1.
Appellant failed to preserve the issue that he has “a valid claim for failing
to respond to the Notice of a Motion for Summary Judgment with Notice to
Plead, and a Motion for Argument,” Appellant’s Brief at 4, in his Pa.R.A.P.
1925(b) statement. “Any issues not raised in a 1925(b) statement will be
deemed waived.” U.S. Bank, N.A. for Certificateholders of LXS 2007-7N
Trust Fund v. Hua, 193 A.3d 994, 997 (Pa. Super. 2018) (quoting
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). Accordingly,
because Appellant failed to preserve the issue in his Pa.R.A.P. 1925(b)
statement, his single claim raised on appeal is waived.3
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3We note that Appellant has proceeded pro se in this civil matter. As we have
explained: “Although this Court is willing to liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit upon the appellant.
To the contrary, any person choosing to represent himself in a legal
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Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/04/2020
____________________________________________
proceeding must, to a reasonable extent, assume that his lack of expertise
and legal training will be his undoing.” Wilkins v. Marsico, 903 A.2d 1281,
1284-1285 (Pa. Super. 2006). Further, the trial court did not err in declining
to appoint counsel for Appellant in this matter. Our Supreme Court has
explained that “although in rem forfeiture proceedings must comport with due
process of law, property interests are generally afforded less due process
protections than liberty interests. Consequently, there is no constitutional
right to the appointment of counsel in a forfeiture proceeding.”
Commonwealth v. All That Certain Lot or Parcel of Land Located at 605
University Drive, 104 A.3d 411, 426 (Pa. 2014). Moreover, as the
Commonwealth Court explained, due process does not require the
appointment of counsel to an indigent inmate in a civil action because the
interest at stake is financial, which commands a lower level of due process
protection than life or liberty interests. Mason v. Pa. Dep’t of Corr., 886
A.2d 724 (Pa. Cmwlth. 2005); cf. Corra v. Coll, 451 A.2d 480, 486 (Pa.
Super. 1982) (wherein this Court determined that the familial, liberty and
property interests at stake in a paternity proceeding are significant enough to
warrant protection through the appointment of counsel for indigent
defendants in paternity actions.)
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