Opinion
1000 MDA 2022 J-A23018-23
01-17-2024
EDGAR LESHER Appellant v. ROBERT AND VANITA SELS
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered June 8, 2022 In the Court of Common Pleas of Berks County Civil Division at No(s): 15 18665.
Benjamin D. Kohler, Esq.
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E.[*]
MEMORANDUM
McLAUGHLIN, J.
Edgar Lesher appeals from the order denying his Petition to Strike/Open Judgment Entered on Defendants' Motion for Summary Judgment. Lesher argues the court erred in entering summary judgment because he had not received valid service of Robert and Vanita Sels' motion for summary judgment. We quash.
Lesher filed a complaint alleging the Sels were liable for the injuries he sustained while on their premises. The complaint alleged Lesher lives on property owned by the Sels, and they requested he repair a depression in the driveway/carport. The complaint stated that while Lesher was doing the repair, an eight-foot-high concrete block wall collapsed onto him, injuring his pelvis, legs, and feet.
The Sels filed an answer, and the case proceeded to discovery. The Sels filed a motion for discovery sanctions, which the court granted. The court filed a notice of termination due to inactivity, and Lesher filed a timely statement of his intent to proceed. After a settlement conference, the Sels filed a motion for summary judgment, which Lesher opposed, and the trial court denied. The court scheduled the case for a jury trial.
The Sels filed a second motion for summary judgment. They argued Lesher admitted during a deposition that he knew about the sinkhole that caused the accident and had testified that "a blind man could see" the bulge in the wall that had collapsed. Defendants' Motion for Summary Judgment, 3/16/22, at ¶ 13. The Sels also argued Lesher had distributed business cards holding himself out as a handyman and that they had hired him as an independent contractor. The Sels quoted several e-mails Lesher had sent them touting his expertise in construction work and explaining the progress he was making on the repair. The Sels attached copies of these e-mails, the deposition transcript, and Lesher's business card to their motion. The Sels' Certificate of Service stated they served the motion for summary judgment on Lesher's counsel, Eric L. B. Strahn, Esquire, via e-mail, on March 16, 2022.
Lesher did not respond to the motion. The Sels filed a Motion for Entry of Judgment. The court granted the motion on April 21, 2022. The order stated, "[J]udgment is entered in favor of Defendants and against Plaintiff." Order, 4/21/22, at 1.
Fifteen days later, on May 6, 2022, Lesher filed the instant "Petition to Strike/Open Judgment Entered on Defendants' Motion for Summary Judgment." He argued Pa.R.C.P. 1035.3 did not permit the court to enter summary judgment until 30 days after he had been served with the motion for summary judgment and failed to respond, and that he had not yet been properly served by fax or mail pursuant to Pa.R.C.P. 440. He argued that electronic service of the motion for summary judgment had not been allowed under Pa.R.C.P. 205.4(g)(i)(ii), because Attorney Strahn had not agreed to electronic service and had not included his e-mail address on his appearance. Lesher did not include any substantive defense to the motion for summary judgment, but requested the court allow him 30 days to file a response to the motion.
On May 11, 2022, the court issued a rule to show cause giving the Sels 20 days to respond to the Petition to Strike/Open. The court also scheduled argument on the Petition to Strike/Open for June 8, 2022. The court did not expressly grant reconsideration of its order entering summary judgment.
The Sels filed a response, arguing Attorney Strahn had received the electronic service of their motion for summary judgment, and a notification from the prothonotary's electronic filing system. The Sels also asserted their counsel had communicated with Attorney Strahn via e-mail throughout the case, including to provide an expert report and copies of other court filings. They argued that because he never objected to receiving documents via email, he waived his right to object to the electronic service of the motion for summary judgment. The Sels further argued Pa.R.C.P. 205.4 allows for electronic service, and that the trial court issued an order in response to the Covid-19 pandemic that suspended any rules restricting the use of electronic service.
At the hearing on the petition, the Chief Deputy Prothonotary for the trial court testified. She stated that Attorney Strahn requested and receives courtesy notices of electronic filings. N.T., 6/8/22, at 15. She testified that when the Sels filed the motion for summary judgment, the prothonotary sent Attorney Strahn a courtesy copy via e-mail. Id. Attorney Strahn stated that while he occasionally receives courtesy copies of electronic filings from the prothonotary's office, he "didn't receive the Motion for Summary Judgment or [he] would have responded to it." Id. at 16. He also contended the order declaring the judicial emergency had not relieved the Sels of their obligation to effectuate proper service by mail or fax, arguing the order "had to do with meetings that were held by the Court and by judicial officers electronically. It had nothing to do with service of pleadings in any manner at all." Id. at 17.
The court denied the Petition on June 8, 2022. Lesher appealed. He raises the following issues:
I. Did the trial court err when it denied [Lesher]'s Petition to Strike/Open the Summary Judgment entered by the court on April 21, 2022[,] by relying on a motion of [the Sels] of a lack of a response by [Lesher] per Pa.R.C.P. 1035.3 which provides that an adverse party must file a response to a motion for summary judgment within [30] days of the service of the motion?
II. Did the trial court err when did not find the motion and supporting brief were never served on [Lesher]'s counsel despite
the clear provisions of the Pennsylvania Rules of Civil Procedure which require service by mail and instead relied on [the Sels'] representations that the motion and brief were served by electronic transmission pursuant to Rule 440(A)(1)(I)(II) despite fact there is no evidence that [Lesher's] counsel has ever listed his e[-]mail on a pleading and despite the fact that there is no evidence that the parties ever agreed to service by e[-]mail?
III. Did the trial court err when it found that [the Sels]' purported service of the motion and brief by electronic means was valid despite the fact that the Rules of Civil Procedure provide for service of legal papers electronically, in counties that have adopted an electronic filing system, by electronic transmission upon a party only if: (A) the party has agreed to accept service by electronic delivery or (B) counsel for the party to be served has placed his electronic mail address on his appearance or a prior paper filed with the court in the action. Pa. R.C.P. 205.4(G)(1)(II) and unless one of these situations applies the Rule states quite clearly that service shall be made under Rule 440. See Pa.R.C.P. 205.4(G)(1)(I)?Lesher's Br. at 5-6 (emphasis in original).
Lesher argues the trial court erred in denying his Petition to Open/Strike because the court erred in entering summary judgment. He claims the entry of summary judgment was premature because the record reflected that he had not received proper service of the motion for summary judgment. He also argues there are material facts at issue which make the entry of summary judgment inappropriate.
We do not reach the issue of whether the court erred in entering summary judgment, because that judgment was entered in an adverse proceeding, has become final, and the Petition to Open/Strike does not plead fraud or extraordinary cause.
While a judgment entered by confession or default "remains within the control of the court indefinitely and may be opened or vacated at any time upon proper cause shown," a judgment entered in an adverse proceeding "ordinarily cannot be disturbed after it has become final." U.S. Bank Tr. Nat'l Ass'n as Tr. of Lodge Series III Tr. v. Unknown Heirs Under Brolley, 278 A.3d 310, 317 (Pa.Super. 2022) (citation omitted).
See Erie Ins. Co. v. Bullard, 839 A.2d 383, 386 (Pa.Super. 2003) (discussing the standards applicable to opening and striking default judgments).
This doctrine, respecting judgments entered in adverse proceedings, has a very definite function, namely, to establish a point at which litigants, counsel and courts ordinarily may regard contested lawsuits as being at an end. A contested action yields a judgment in which the value of finality is greatest. There has been a decision following an examination of the critical issues through bilateral participation of the parties . . . . For all the reasons that finality of judgments is important, such a judgment should be invulnerable except upon a showing of extraordinary miscarriage.Id. at 317-18 (quoting Simpson v. Allstate Ins. Co., 504 A.2d 335, 337 (Pa.Super. 1986)) (alteration in original).
When judgment is entered in an adverse proceeding, the parties have three options: timely file an appeal, timely move for reconsideration, or, after the appeal period has expired, plead fraud or "extraordinary cause":
As we have repeatedly stated, once a final order or judgment is entered, an appeal must be filed within thirty days or, the trial court must expressly grant reconsideration within thirty days. If either of these two events do not occur, the judgment is final and except for "extraordinary cause" is not subject to collateral attack by virtue of a petition to open and/or strike.Luckenbaugh v. Shearer, 523 A.2d 399, 402 (Pa.Super. 1987) (en banc).
See also U.S. Bank Tr. Nat'l Ass'n as Tr. of Lodge Series III Tr, 278 A.3d at 317 ("A judgment entered in adverse proceedings becomes final if no appeal is filed within thirty days. See 42 Pa.C.S. § 5505. Thereafter, the judgment cannot normally be modified, rescinded or vacated. Similarly, it cannot be 'opened.'" (citation omitted)); Ins. Co. of N. Am. v. Bishop, 529 A.2d 33, 36 (Pa.Super. 1987) (differentiating between law applicable to opening judgments entered by default or confession and those entered in adverse proceedings). There are a few other exceptions to the court's inability to act after 30 days which are not at issue here, such as its authority to correct clerical errors and to preserve the status quo during an appeal. See Pa.R.A.P. 1701(b); Mfrs. & Traders Tr. Co. v. Greenville Gastroenterology, SC, 108 A.3d 913, 921 (Pa.Super. 2015).
If a party moves for reconsideration of the entry of judgment, the court must expressly grant reconsideration within the 30-day appeal period to retain jurisdiction to vacate the judgment. See Witherspoon v. Wal-Mart Stores, Inc., 814 A.2d 1222, 1225 (Pa.Super. 2002) (citation omitted). Issuance of a rule to show cause or the scheduling of a hearing on a motion for reconsideration is insufficient to toll the appeal period and retain the trial court's jurisdiction to amend the judgment. Id. The rules provide that a party may file both a motion for reconsideration and a protective notice of appeal in case the court does not timely grant the motion for reconsideration. See Pa.R.A.P. 1701 at Note (discussing Pa.R.A.P. 1701(b)(3)).
The court need not vacate the judgment to retain jurisdiction, so long as it expressly grants reconsideration within the appeal period. K.T.R. v. L.S., 238 A.3d 478, 481 n.8 (Pa.Super. 2020). Nor does the court need to render its decision on its reconsideration within the appeal period. See Pa.R.A.P. 1701, Note.
Once the appeal period has expired, if the court has not granted reconsideration and no appeal is pending, judgments entered in adverse proceedings are final and can only be opened or vacated if "there has been fraud or some other circumstance so grave or compelling as to constitute 'extraordinary cause' justifying intervention by the court." U.S. Bank Tr. Nat'l Ass'n as Tr. of Lodge Series III Tr., 278 A.3d at 318 (quoting Simpson, 504 A.2d at 337). "Extraordinary cause" is generally defined as "an oversight or action on the part of the court or the judicial process which operates to deny the losing party knowledge of the entry of final judgment so that the commencement of the running of the appeal time is not known to the losing party." Shelly Enters., Inc. v. Guadagnini, 20 A.3d 491, 494 n.3 (Pa.Super. 2011) (citation and emphasis omitted).
Similarly, the court may grant a party the right to file an appeal nunc pro tunc "only if the delay in filing is caused by extraordinary circumstances involving fraud or some breakdown in the court's operation through a default of its officers." Amicone v. Rok, 839 A.2d 1109, 1113 (Pa.Super. 2003) (internal quotation marks and citation omitted).
Thus, where the party was aware within the appeal period of the entry of judgment in a contested proceeding, its petition to open or vacate does not plead extraordinary cause. See Luckenbaugh, 523 A.2d at 401 (finding no extraordinary cause where the appellees were aware of the entry of judgment within the time prescribed for filing an appeal); Orie v. Stone, 601 A.2d 1268, 1272 (Pa.Super. 1992) (same). A procedural irregularity that might justify opening judgment within the appeal period will not do so after the appeal period has expired, and an attorneys' failure to file a timely appeal due to an oversight does not constitute extraordinary cause. See Orie, 601 A.2d at 1272; Simpson, 504 A.2d at 337-38.
See also Witherspoon, 814 A.2d at 1225 n.4 (finding no extraordinary cause where "Wal-Mart was clearly on notice of the judgment, as evidenced by its improper filing of a petition to open default judgment").
Here, the entry of summary judgment was not by default or confession. The Sels answered the complaint and, following various other contested proceedings, moved for summary judgment. Lesher did not respond to the motion, and the court - not the prothonotary - entered judgment. Thus, the entry of summary judgment in this case constituted a judgment entered in an adverse proceeding. See Luckenbaugh, 523 A.2d at 401 (holding judgment entered because of plaintiff's failure to comply with discovery requests was not a default judgment but was entered in a contested proceeding); Simpson, 504 A.2d at 337 (holding judgment entered against defendant after defendant failed to comply with court's discovery order "was not merely judgment entered upon praecipe by the prothonotary" but was "a judgment entered in a contested proceeding pursuant to court order").
See also Ins. Co. of N. Am., 529 A.2d at 36 (holding summary judgment was not entered by confession or default); Fed. Nat'l Mortg. Ass'n v. Kaiser, No. 3368 EDA 2014, 2016 WL 128613, unpublished mem. at *2 (Pa.Super. filed Jan. 12, 2016) (holding entry of summary judgment due to defendant's failure to respond to motion for summary judgment was not a default judgment).
Lesher failed to move for reconsideration or file an appeal from the judgment within the 30-day appeal period. While he filed the Petition to Open/Strike within that period, the court neither denied the Petition to Open/Strike nor expressly granted reconsideration of its order entering summary judgment within that period. The court issued only a rule to show cause and scheduled a hearing. After 30 days, the judgment became final. Lesher forfeited his opportunity to appeal, and the court lost jurisdiction to disturb it unless Lesher's Petition to Open/Strike pleaded fraud or extraordinary cause. U.S. Bank Tr. Nat'l Ass'n as Tr. of Lodge Series III Tr., 278 A.3d at 318.
While the Petition to Open/Strike argues Lesher had not received service of the motion for summary judgment, the Petition to Open/Strike makes no claim that Lesher did not receive notice of the entry of summary judgment or was prevented from filing a timely appeal. Nor could it, as Lesher clearly filed the Petition to Open/Strike within the appeal period. It thus failed to plead fraud or extraordinary cause. See Luckenbaugh, 523 A.2d at 401; Orie, 601 A.2d at 1272.
See also Fed. Nat'l Mortg. Ass'n, 2016 WL 128613, unpublished mem. at *2 (holding petition failed to plead fraud or extraordinary cause to support opening or vacating summary judgment where petition alleged former attorney failed to file a response to the motion for summary judgment).
Where the court acts outside of the appeal period on a petition that does not plead fraud or extraordinary cause, the court's order is a nullity, and no appeal lies from such an order. Rather, pursuant to precedent, such an appeal is considered an untimely collateral attack on a final judgment that is properly subject to quashal. See Shelly Enters., Inc., 20 A.3d at 496. As Lesher's Petition to Open/Strike did not plead fraud or extraordinary cause, it did not vest the trial court with jurisdiction to act after the appeal period expired. Accordingly, the court's order was a nullity and we quash this appeal.
Appeal quashed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.