J. A33007/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MARCOS SANCHEZ, M.D.                          :         IN THE SUPERIOR COURT OF
                                              :               PENNSYLVANIA
                     v.                       :
                                              :
MEHDI NIKPARVAR, M.D. AND                     :
INCARE, LLC,                                  :              No. 1407 EDA 2013
                                              :
                          Appellants          :


                   Appeal from the Judgment, April 17, 2013,
                in the Court of Common Pleas of Carbon County
                          Civil Division at No. 11-0247


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED FEBRUARY 23, 2016

        Mehdi Nikparvar, M.D. (hereinafter “appellant” or “defendant”),1

appeals from the April 17, 2013 order from the Carbon County Court of

Common       Pleas   denying   his   motion       for   post-trial   relief    pursuant    to

Pa.R.C.P. 227.1(a)(1),      following   a     jury       trial   verdict      in   favor   of

Marcos Sanchez, M.D. (hereinafter “appellee” or “plaintiff”).2 We affirm.

        The trial court provides the following procedural history:




* Retired Senior Judge assigned to the Superior Court.
1
  For the purposes of this memorandum, “appellant” shall refer only to
Dr. Nikparvar, unless otherwise noted, as InCare has not filed a concise
statement    of  matters   complained    of  on   appeal   pursuant   to
Pa.R.A.P. 1925(b). See infra.
2
    Judgment was thereafter entered on April 17, 2013.
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              Plaintiff instituted this action on January 31, 2011,
              alleging, among other things, breach of contract and
              violation of the Pennsylvania Wage Payment and
              Collection Law.[3]      On March 22, 2011, default
              judgment was entered in favor of Plaintiff and
              against     Defendants.        Several   weeks   later,
              Defendants obtained legal counsel in the person of
              Attorney Gregory Moro who then in turn filed a
              petition requesting this Court to strike the judgment,
              or in the alternative open said judgment claiming
              they       were      never      served     with    the
              complaint.[Footnote 1] Thereafter a rule was issued
              upon Plaintiff as to why Defendants’ petition should
              not be granted and a hearing was scheduled on the
              petition. On September 12, 2011, the Honorable
              Senior Judge Stine granted Defendants’ petition to
              open judgment and required Defendants to file a
              responsive pleading thereafter.

                    Three months later, on December 13, 2011,
              Attorney Moro filed a petition to withdraw as counsel
              with said petition being granted on January 17,
              2012. Thereafter, Plaintiff filed various motions to
              compel discovery to which Defendants failed to
              respond and failed to appear before the Court when
              hearings on the motions were held.

                     After   a     pre-trial  conference,    whereby
              Defendants failed to appear, the matter was
              scheduled for trial to be held on February 4, 2013.
              Notice of the trial order was sent on August 14, 2012
              to Plaintiff and both Defendants to the addresses
              each party provided to the Court. On February 4,
              2013, the trial in this matter was held despite
              Defendants’ failure to appear for the trial. After
              Plaintiff presented his case-in-chief the jury found in
              favor of Plaintiff and against Defendants. The verdict
              was entered on February 4, 2013, and notice of such
              was sent to each Defendant. On February 12, 2013,
              Defendant, Nikparvar, filed a petition to strike or
              open judgment; however this Court denied such
              petition on the basis that said petition was

3
    43 P.S. § 260.1, et seq.


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            premature since no judgment had been entered
            against either Defendant.

                   On March 1, 2013, Defendants filed a post-trial
            motion and a hearing was scheduled for March 22,
            2013. At the hearing Plaintiff’s counsel objected to
            Defendants’ post-trial motion as being untimely
            claiming Defendants waived such right to assert any
            post-trial motion.      This Court however denied
            Plaintiff’s objection to ensure Defendants did not
            have a meritorious defense for their failure to appear
            at trial and on the underlying breach of contract
            action.     On April 17, 2013, this Court denied
            Defendants’ post-trial motion.        A month later
            [May 17, 2013] Defendants filed this present appeal
            of this Court’s Order of April 17, 2013.

                 By Order of Court dated May 17, 2013, and
            docketed May 20, 2013, this Court directed
            Defendants to file a concise statement of the matters
            complained of in the appeal within twenty-one (21)
            days from the date of the order being docketed
            pursuant to Pennsylvania Rule of Appellate Procedure
            1925(b).


            [Footnote 1] Defendants did file an amended petition
            to strike or open the judgment two days later.

Trial court opinion, 6/12/13 at 1-3.4

      On June 3, 2013, InCare filed a petition of bankruptcy with the United

States Bankruptcy Court for the Eastern District of Pennsylvania. InCare’s

counsel filed notice of the bankruptcy proceedings with this court on

June 14, 2013.    On October 7, 2013, in a per curiam order, this court


4
  The trial court filed two opinions in this matter, on June 12, 2013 and
July 31, 2015, because it was never notified of InCare’s bankruptcy
proceedings with the Bankruptcy Court. (See trial court opinion, 7/31/15 at
2 n.2.)


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ordered a stay on all proceedings against both appellants while InCare’s

bankruptcy proceedings were pending pursuant to 11 U.S.C. § 362. Upon

petition of appellee, the bankruptcy court lifted the automatic stay on

June 4, 2015, only as to Dr. Nikparvar. On June 15, 2015, this court lifted

its stay on the instant appeal.

            [O]n June 10, 2015, only Appellant Nikparvar filed a
            Concise Statement of Matters Complained of on
            Appeal, pursuant to Pennsylvania Rules of Appellate
            Procedure 1925(b).      In this statement, Appellant
            Nikparvar raised the following two issues:

            1)    The Court erred in its February 7, 2013
                  Order because InCare compensated
                  Plaintiff/Appellee for all amounts owed
                  under Plaintiff/Appellee’s employment
                  contract and thus, neither Dr. Nikparvar
                  nor InCare was liable under the Wage
                  Payment and Collection Law.         See
                  43 P.S. § 260.1 et seq.; and

            2)    The Court erred in its April 17, 2013
                  Order because the verdict against
                  Dr. Nikparvar     was     invalid     since
                  Dr. Nikparvar did not receive notice of,
                  and did not attend, the trial.         See
                  Helper v. Urban, 518 Pa. 482, 484
                  (1988) (opening judgment where, “the
                  petition to open [is] promptly filed;
                  (2) the failure to appear or file a timely
                  answer [is excused]; and (3) the party
                  seeking to open the judgment [has a]
                  meritorious defense.”




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Trial court opinion, 7/31/15 at 3-4 (footnote omitted). The trial court issued

an opinion pursuant to Pa.R.A.P. 1925(a) on July 31, 2015.5

      Appellant raises the following issue on appeal:

            1.     Whether the Court erred in its April 17, 2013
                   Order because the verdict against Appellant,
                   Dr.      Nikparvar        (“[a]ppellant”      or
                   “Dr. Nikparvar”[)]    was     invalid    because
                   Dr. Nikparvar did not receive notice of, and did
                   not attend, the trial, and was deprived of the
                   opportunity to defend against the claims[?]

Appellant’s brief at 4.

      Before we can address appellant’s issue on its merits, we must first

determine whether appellant’s post-trial motion is timely. The Pennsylvania

Rules of Civil Procedure require the following:

            (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;

            ....

Pa.R.C.P. 227.1(c)(1).     A trial court is free to either dismiss an untimely

post-trial motion or ignore the motion’s untimeliness and consider it on its

merits.   Ferguson v. Morton, 84 A.3d 715, 718 n.4 (Pa.Super. 2013),

appeal denied, 97 A.3d 745 (Pa. 2014) (citations omitted).

            “Whenever a party files post-trial motions at a time
            when the court has jurisdiction over the matter but

5
  The trial court also questions the timeliness of the filing of the Rule 1925
statement, but then addresses the issues raised therein.


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           outside the ten-day requirement of Pa.R.C.P. 227.1,
           the trial court’s decision to consider the motions
           should not be subject to review unless the opposing
           party objects.”     Mammoccio v. 1818 Market
           Partnership, 734 A.2d 23 (Pa.Super. 1999) (citing
           Millard v. Nagle, 402 Pa.Super. 376, 587 A.2d 10,
           12 (1991) affirmed, 533 Pa. 410, 625 A.2d 641
           (1993)). If the opposing party objects, then the trial
           court must consider the fault of the party filing late
           and the prejudice to the opposing party. Id.

Watkins v. Watkins, 775 A.2d 841, 845 n.1 (Pa.Super. 2001). Here, the

trial court denied appellant’s post-trial motion on both procedural and

substantive grounds.      Specifically, the trial court found that the post-trial

motion filed by appellant and InCare was untimely because it was filed more

than ten days after the jury verdict.        (See trial court order, 4/17/13 at

1 n.1, citing Pa.R.C.P. 277.1(c).)     We could affirm the trial court on this

basis; however, even in reviewing appellant’s issue, because the trial court

held a hearing and denied appellant’s motion, we would grant no relief.

     On appeal, appellant avers that he never received notice of his

February 4, 2013 trial, and that he has overcome the mailbox rule’s

presumption of receipt.

                  The mailbox rule provides that “depositing in
           the post office a properly addressed prepaid letter
           raises a natural presumption, founded in common
           experience, that it reached its destination by due
           course of mail.” Jensen v. McCorkell, 26 A. 366,
           367 (Pa. 1893) (citation omitted).            As the
           Pennsylvania     Supreme     Court  noted:        “The
           overwhelming weight of statistics clearly indicates
           that letters properly mailed and deposited in the post
           office are received by the addressees.” Meierdierck
           v. Miller, 147 A.2d 406, 408 (Pa. 1959). Thus,


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          “[e]vidence that a letter has been mailed will
          ordinarily be sufficient to permit a [fact finder] to
          find that the letter was in fact received by the party
          to whom it was addressed.” Shafer v. A. I. T. S.,
          Inc., 428 A.2d 152, 156 (Pa.Super. 1981) (citations
          omitted).

                However, “evidence of actual mailing is not
          required.” Commonwealth, Dep’t of Transp. v.
          Brayman Constr. Corp., 513 A.2d 562, 566
          (Pa.Cmwlth. 1986)[]. The Superior Court has held
          that “when a letter has been written and signed in
          the usual course of business and placed in the
          regular place of mailing, evidence of the custom of
          the establishment as to the mailing of such letters is
          receivable as evidence that it was duly mailed.”
          Christie v. Open Pantry Food Marts Inc. of
          Delaware Valley, 352 A.2d 165, 166-167
          (Pa.Super. 1975) (citation omitted). To trigger the
          presumption of receipt, “the party who is seeking the
          benefit of the presumption must adduce evidentiary
          proof that the letter was signed in the usual course
          of business and placed in the regular place of
          mailing.” Geise v. Nationwide Life & Annuity Co.
          of America, 939 A.2d 409, 423 (Pa.Super. 2007)
          (emphasis added); Shafer, 428 A.2d at 156. “A
          presumption that a letter was received cannot be
          based on a presumption that the letter was mailed.
          A presumption cannot be based on a presumption.”
          Geise, 939 A.2d at 423 (citations omitted).
          Documentary evidence of mailing or testimony from
          the author that a document was mailed may
          establish the presumption of receipt.            See
          Commonwealth, Dep’t of Transp. v. Grasse, 606
          A.2d 544, 546 (Pa.Super. 1992) (holding appellees
          met burden of proof of mailing by producing certified
          driving record which included document showing
          notice was mailed; cf. Meierdierck, 147 A.2d at 408
          (holding that “[w]here the use of the mails as a
          means of acceptance is authorized or implied from
          the surrounding circumstances, the acceptance is
          complete by posting the letter in normal mail
          channels, without more.”).



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Szymanski v. Dotey, 52 A.3d 289, 292-293 (Pa.Super. 2012) (emphasisin

original).

       In the instant appeal, appellant cites two cases in which it was

determined that the mailbox rule’s presumption did not apply because the

requirements to meet the presumption were not met. See Szymanski, 52

A.3d at 293; Commonwealth v. Thomas, 814 A.2d 754, 759 (Pa.Super.

2002). Both cases are distinguishable from the present case.

       In Szymanski, the Civil Court Administrator testified that she was the

author of a trial notice to be sent to David Szymanski, the appellant in the

case. Szymanski, 52 A.3d at 293. The Court Administrator did not testify,

“that she placed the notice in her office’s usual place for outgoing mail, nor

did she testify that she or any other employee mailed it via any method of

mailing.” Id. Moreover, the trial court in Szymanski found that the record

did not reflect any documentary evidence indicating that the trial notice was

mailed. In Thomas, this court found that testimony regarding the general

practice of mailing hearing notices was not sufficient to establish the mailbox

rule’s presumption of receipt. Thomas, 814 A.2d at 759. The record also

did not reflect any documentary evidence that the notice was mailed. Id. at

760.

       Here, appellees did not introduce any testimony from any employee of

the Carbon County Court of Common Pleas indicating that appellant was

mailed a trial notice. Unlike Szymanski and Thomas, however, the record



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in this case reflects that notice of trial was mailed to appellant. The case

docket maintained by the trial court indicates that appellant was mailed a

trial notice:

                183. 8/15/12 RCP (236)[6] NOTICE MAILED TO
                     ATTY BERGSTEIN & DEFS (JURY TRIAL ORDER)

Reproduced record at 8a.         This entry in the case docket provides

documentary evidence that the trial notice was mailed to appellant, as

contemplated by this court in Szymanski and by the Commonwealth Court

in Grasse. Therefore, we find that the mailbox rule does apply in this case,

and that the presumption of receipt has been met.

      Appellant next avers that even if the mailbox rule did apply, he has

overcome the presumption of receipt. Specifically, appellant claims that the

trial court’s reliance on Rothstein v. Polysciences, 853 A.2d 1072

(Pa.Super. 2004), is misguided because the decision in Rothstein was

primarily based on an attorney’s failure to comply with a local rule in the

Bucks County Court of Common Pleas, which required the attorney to notify

the Bucks County Court Administrator of any change in the attorney’s

address. (Appellant’s brief at 16-17; Rothstein, 853 A.2d at 1075.) While

Carbon County does not have a similar local rule to the Bucks County rule at



6
  The Pennsylvania Rules of Civil Procedure require the prothonotary to
“immediately give written notice of the entry of . . . any . . . order or
judgment to each party’s attorney of record or, if unrepresented, to each
party.   The notice shall include a copy of the order or judgment.”
Pa.R.C.P. 236 (a)(2).


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issue in Rothstein, we agree with the trial court that appellant, who had

been represented by numerous counsel throughout the course of this

litigation, had “a duty and obligation to notify the Court or Prothonotary of

his change of address.” (Trial court order, 4/17/13 at 2 n.1.)

      Moreover, appellant provided no evidence other than his own

testimony that he did not receive a notice of trial.     As noted by the trial

court, mere testimony of lack of receipt is not enough to overcome the

mailbox rule’s presumption.    Samaras v. Hartwick, 698 A.2d 71, 73-74

(Pa.Super. 1997), quoting Grasse, 606 A.2d at 545 (“proof of a mailing

raises a rebuttable presumption that the mailed item was received and it is

well-established that the presumption under the mailbox rule is not nullified

solely by testimony denying receipt of the item mailed”).        The trial court

found appellant’s testimony regarding his lack of notice to be incredible.

(See trial court opinion, 7/31/15 at 9.) We also join the trial court in finding

it “puzzling how [appellant] can claim he did not receive any Court orders

after May of 2012 or notice of the trial, yet he received notice of the jury

verdict that was sent to the same Bloomsburg address as all previous Court

orders.”   (Trial court order, 4/17/13 at 2 n.1.)      We therefore find that

appellant is unable to overcome the mailbox rule’s presumption of receipt of

the trial notice.




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      Judgment affirmed. Although this court has not found this appeal to

be wholly frivolous, we do remand for a reward of costs to appellee pursuant

to Pa.R.A.P. Chapter 27. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2016




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