Opinion
No. 2315 C.D. 2011
01-09-2014
Norma Badillo v. Hector and Norma Guzman, h/w and City of Philadelphia Appeal of: Hector Guzman
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Hector Guzman (Guzman), pro se, appeals from the Philadelphia County Common Pleas Court's (trial court) March 10, 2011 order denying Guzman's Motion to Strike Judgment (Motion). Guzman raises five issues for this Court's consideration: (1) whether Guzman waived his appeal issues because he failed to file a Statement of Errors pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (Rule 1925(b) order) or whether the trial court erred by not determining if its May 24, 2012 order directing Guzman to file a Rule 1925 (b) Statement was properly sent to Guzman; (2) whether the trial court erred when it failed to conclude that the underlying personal injury action was time-barred; (3) whether the trial court erred when it denied Guzman's request for a hearing to present newly-discovered evidence; (4) whether Guzman's former counsel's alleged negligence warrants the granting of his Motion; and, (5) whether the trial court erred in entering judgment when the arbitration panel allegedly failed to conduct a comparative negligence assessment.
This appeal, which has travelled a long and labored procedural path, arises from a complaint filed by Norma Badillo (Badillo) on January 29, 2007 against Guzman and his wife, Norma Guzman (the Guzmans), the City of Philadelphia (City), and the Redevelopment Authority of the City (Authority). The complaint alleged negligence arising from Badillo's slip and fall on a defective sidewalk owned by the Guzmans. On March 13, 2007, Leslie H. Allen, Esquire (Attorney Allen), filed an answer on behalf of the Guzmans. On March 27, 2007, the City filed its answer and new matter, which, among other things, raised crossclaims against the Guzmans. On September 18, 2007, the Authority filed its answer and new matter.
On September 24, 2007, a panel of arbitrators (Panel) heard the case. Guzman, who was in prison at the time, did not attend; however, Mrs. Guzman was present, represented by Attorney Allen. After the hearing, the Panel issued a Report and Award of Arbitrators (Award). The Award reflected that the City and Badillo had agreed to settle their dispute for $50,000.00. In response to the City's crossclaim against the Guzmans, the Panel found in favor of the City and against the Guzmans in the amount of $50,000.00. The Panel also found in the Authority's favor. When Mrs. Guzman asked about filing an appeal, Attorney Allen told her that an appeal would cost more money. No appeal was filed. On October 31, 2007, the trial court entered judgment in favor of the City and against the Guzmans.
In the same affidavit which was attached to Guzman's Petition to Strike a Void Judgment, filed on February 3, 2011, Mrs. Guzman also contends that no one told her that she had 30 days to file an appeal.
On June 22, 2009, Guzman filed with the trial court the first of numerous documents seeking to open the judgment entered on the arbitration award. On February 3, 2011, Guzman filed a Petition to Strike a Void Judgment, alleging that newly-discovered evidence supported the granting of his petition. The trial court treated Guzman's filings as a Motion to Strike the Judgment and, on March 10, 2011, denied the Motion.
On September 22, 2009, the Guzmans commenced a separate legal malpractice action against Attorney Allen. The Guzmans later filed a praecipe to discontinue that action without prejudice.
On April 20, 2011, Guzman appealed from the trial court's denial to the Superior Court. On July 11, 2011, the Superior Court dismissed the appeal as untimely filed. On July 21, 2011, Guzman filed an Application for Reconsideration of Dismissal which the Superior Court granted on August 11, 2011. On October 25, 2011, the matter was transferred to this Court. By order dated January 18, 2012, this Court directed the trial court to certify and transmit a supplemental record consisting of an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). On May 24, 2012, the trial court ordered Guzman to file his Concise Statement of Errors Complained of on Appeal (Statement of Errors) within 21 days of the entry of the order because the judge originally assigned to the case had retired and the newly-assigned judge was unfamiliar with the case's procedural history. Guzman did not comply with the trial court's order and on August 6, 2012, this Court dismissed the appeal. On August 17, 2012, Guzman filed a Motion for Reconsideration and Reinstatement of Appellant's Rights to Appeal Nunc Pro Tunc. On August 31, 2012, this Court issued an order stating:
Now, August 31, 2012, upon consideration of appellant's 'Motion for Reconsideration and Reinstatement of Appellant's Rights to Appeal Nunc Pro Tunc,' it appears that appellant may not have received notice of the trial court's May 24, 2012 [order]. As appellant's failure to file his Concise Statement of Errors may have been caused by a breakdown in the judicial process warranting an extension of time to file, reconsideration is granted, and this Court's order of August 6, 2012 is vacated.
Because the trial court is the better forum in which to examine appellant's averments, the motion and record are remanded to the trial court for a determination of whether appellant was sent notice of the May 24, 2012 order and
should be granted leave to file his Statement of Errors nunc pro tunc, and for a concurrent supplemental opinion. See Pa. R.A.P. [sic] 1925(c)(2). The trial court shall return the record to this Court by November 30, 2012.August 31, 2012 Order. On November 20, 2012, the trial court issued its opinion pursuant to Pa.R.A.P. 1925(a), "address[ing], to the best of its ability, [the original trial judge's] denial of the Motion to Strike the Judgment entered on the Award of Arbitrators in favor of the [City]." Trial Ct. Op at 4. The trial court acknowledged that it was possible Guzman did not receive a copy of the Rule 1925(b) order. Based on the trial court's opinion, we will address the merits of the appeal.
"Our standard of review of a denial of a petition to open judgment is limited to determining whether the trial court abused its discretion or committed an error of law." Clayton v. City of Phila., 910 A.2d 93, 97 n.8 (Pa. Cmwlth. 2006).
Guzman first argues that he did not waive his appeal issues because the trial court failed to determine whether its Rule 1925(b) order was properly sent to him. We agree.
Generally, failure to timely comply with a trial court's order requiring the filing of a 1925(b) Statement results in the waiver of all issues on appeal. Pa.R.A.P. 1925(b)(4); see also Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484 (2011). It is well-established that "the clerk of courts has a mandatory duty to furnish copies of the [Rule 1925(b)] order to each party or [his or her] attorney." Commonwealth v. Hess, 570 Pa. 610, 615, 810 A.2d 1249, 1252 (2002); see also Dunbar v. Downington Area Sch. Dist., 901 A.2d 1120 (Pa. Cmwlth. 2006). No waiver will be found when a clerk of courts fails to uphold that duty. Dunbar.
By August 31, 2012 order, this Court directed the trial court to determine "whether [Guzman] was sent notice of the [Rule 1925(b) order] and should be granted leave to file his Statement of Errors nunc pro tunc, and for a concurrent supplemental opinion." August 31, 2012 Order. The record does not reflect that the trial court ever conclusively determined whether Guzman was sent notice of the May 24, 2012 order, nor does it demonstrate that the trial court granted Guzman leave to file his Statement of Errors nunc pro tunc. Instead, the trial court issued a November 20, 2012 concurrent supplemental opinion which merely states in regards to that issue: "[T]his Court finds that it is possible that [Guzman] did not receive notice of the Court's May 24, 2012 order because [Guzman] did not update the Court of a change in address." Trial Ct. Op. at 3. Given the trial court's failure to conclusively determine whether the Rule 1925(b) order was sent to Guzman and its acknowledgment that it is possible that Guzman never received notice, we decline to find a waiver of the issues on appeal.
Guzman next argues that the trial court erred when it failed to conclude that the underlying action was time-barred. Specifically, Guzman contends that the complaint was filed beyond the two-year statute of limitations since the accident occurred between 1:00 and 2:30 a.m. on January 29, 2005, and the complaint was filed at 11:31 a.m. on January 29, 2007, with the filing fee paid at 2:51 p.m. According to Guzman, the judgment is voidable because the complaint was filed several hours beyond the two-year anniversary of the date and time of the incident, and the failure to timely file the action deprived the Panel and the trial court of jurisdiction. We disagree.
The City asserts that Guzman waived this issue because he did not raise it at the arbitration hearing. The record does not contain a transcript of the arbitration hearing. Notably, the statute of limitations was raised in Guzman's answer, but not under the heading "New Matter" as required by Pennsylvania Rule of Civil Procedure No. 1030. In light of the fact that the record is unclear on this point, we will address the issue.
The expiration of a statute of limitations does not deprive a court of subject matter jurisdiction. "The statute of limitations is an affirmative defense that must be pleaded specifically or it is waived." Weber v. Wyoming Valley W. Sch. Dist., 668 A.2d 1218, 1221 (Pa. Cmwlth. 1995). The timeliness of the instant action's filing is governed by Section 5524 of the Judicial Code which mandates that the limitations period for a cause of action to recover damages for injuries to a person is two years. The computation of time referred to in Section 5524 of the Judicial Code is governed by Section 1908 of the Statutory Construction Act which states:
When any period of time is referred to in any statute, such period in all cases . . . shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.1 Pa.C.S. § 1908 (emphasis added).
Badillo's injuries occurred between 1:00 a.m. and 2:30 a.m. on January 29, 2005. In accordance with Section 1908 of the Statutory Construction Act, the two year limitations period is calculated by excluding January 29, 2005, and including the last day of the two year period, January 29, 2007. Because Section 1908 requires inclusion of the last day of the period, Badillo was permitted to commence her action at any time of the day on January 29, 2007. Accordingly, there is no merit to Guzman's contention that the complaint was untimely, and that the judgment is voidable and should be stricken on that basis.
Guzman also asserts that the trial court erred when it denied his request for a hearing to present newly-discovered evidence in the form of Guzman's next door neighbor Tania Barreiro's (Barreiro) testimony. We disagree.
This Court has explained the restrictive nature of the remedy of opening or vacating a judgment:
It is well settled that courts of this Commonwealth possess inherent power to act where equity so demands. In such situations, the power of the court to open and set aside its judgments may extend beyond the expiration of the appeal
period. The discretionary power of the court over such judgments is, however, very limited. Generally, judgments regularly entered in adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstances so grave or compelling as to constitute extraordinary cause justifying intervention by the court. Such circumstances have customarily entailed an oversight or act by the court, or failure of the judicial process, which operates to deny the losing party knowledge of entry of final judgment and commencement of the running of the appeal period.Dep't of Transp., Bureau of Driver Licensing v. Axsom, 598 A.2d 616, 619 (Pa. Cmwlth. 1991) (citations and quotation marks omitted), overruled in part on other grounds by Shapiro v. Center Twp., 632 A.2d 994 (Pa. Cmwlth. 1993). "We review the denial of a request to present after-discovered evidence for an abuse of discretion." A.G. Cullen Constr., Inc. v. State Sys. of Higher Educ., 898 A.2d 1145, 1167 (Pa. Cmwlth. 2006).
It is long settled that a petition to re-open judgment . . . on the basis of after-discovered evidence, will only be granted where that evidence: (1) is new; (2) could not have been obtained at trial in the exercise of due diligence; (3) is relevant and non-cumulative; (4) is not for the purposes of impeachment; (5) and must be likely to compel a different result.Id. at 1167 (quoting In re Cook, 527 A.2d 1115, 1116 (Pa. Cmwlth. 1987) (emphasis omitted)). Notably:
Mere testimonial evidence, purporting to discredit the trial testimony of the prevailing party, is not sufficient to warrant a new trial. To hold otherwise, would encourage losing parties to continually beseige [sic] trial courts with claims that the prevailing party lied, thereby requiring the second guessing of the fact finder's initial determination of credibility.Commonwealth v. Stern, 509 Pa. 260, 266, 501 A.2d 1380, 1383 (1985).
The trial court denied Guzman's request to present Barreiro's testimony for two reasons. First, Barreiro lived next to the property where the incident allegedly occurred, and with the exercise of due diligence, Guzman could have easily discovered that Barreiro had knowledge of the incident, questioned her and presented her testimony at the arbitration hearing. Second, the trial court concluded that Guzman intended to use Barreiro's testimony for purposes of impeaching Badillo. Thus, Guzman's intended use of the after-discovered evidence was in contravention of the rule set forth in A.G. Cullen, and the trial court's refusal to open judgment was consistent with the law as explained in Stern. Accordingly, we find that the trial court did not err when it declined to open judgment to permit Guzman to present Barreiro's testimony.
Next, Guzman asserts that "newly discovered evidence of 'Attorney Fraud' perpetrated" by Guzman's former counsel warrants the granting of his Motion. We disagree. Recently, this Court, in Korby v. Zoning Hearing Board of Pulaski Township, 65 A.3d 1113 (Pa. Cmwlth. 2013), affirmed a trial court's decision that while counsel's failure to discharge his duties might have amounted to negligence or malpractice, it did not constitute the extraordinary cause necessary to open a judgment. See also Estate of Gasbarini v. Med. Ctr. of Beaver Cnty, Inc., 487 Pa. 266, 409 A.2d 343 (1979).
Although Guzman's Motion alleges that he has "discovered newly[-] found evidence explaining how [Attorney Allen] abandoned [the Guzmans'] sole defense to the award at issue," and that Attorney Allen's conduct amounts to fraud, Guzman's allegations sound in attorney negligence. Motion at 1. In essence, Guzman is dissatisfied with Attorney Allen's representation, believes that she failed to provide an adequate defense to the underlying action and that her conduct prevented him from discovering and using Barreiro's testimony in his defense. We conclude that the alleged deficiencies in Attorney Allen's execution of her duties do not constitute extraordinary cause requiring the opening of the judgment.
If Guzman has suffered damages as a result of Attorney Allen's alleged negligent performance, Guzman may pursue those damages by way of a legal malpractice action.
Finally, Guzman argues that the trial court erred when it entered judgment despite the Panel's alleged failure to conduct a comparative negligence assessment. Although Guzman's argument appears to address the substantive propriety of the actions taken by the Panel and the trial court, we will construe his argument in the context of whether such alleged error demonstrates that the judgment should be opened.
At issue in this appeal is whether the trial court erred in denying Guzman's Motion. The substantive issue of whether the trial court erred in entering judgment is not properly before this Court. --------
Notably, the Panel directly considered the Guzmans' liability to the City on the City's crossclaim and awarded the City the full amount of the damages it had paid to Badillo to be paid by the Guzmans. We hold that the conduct alleged in Guzman's Motion to Strike the Judgment does not represent the type of grave or compelling circumstance to merit opening a judgment entered almost two years prior to the filing of the Motion, as it did not involve "an oversight or act by the court, or failure of the judicial process, which operate[d] to deny the [Guzmans] of knowledge of entry of final judgment and commencement of the running of the appeal period." Axsom, 598 A.2d at 619. Thus, we conclude that the trial court did not err when it denied Guzman's Motion.
For all of the above reasons, the trial court's March 10, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 9th day of January, 2014, the Philadelphia County Common Pleas Court's March 10, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge