J-A05041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOHN KELLEY AND TRICIA KELLEY                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                    V.

 TODD HARR

                    Appellant
                                                      No. 1332 WDA 2019


                  Appeal from the Order Entered July 30, 2019
                In the Court of Common Pleas of Bedford County
                             Civil Division at No(s):
                                    1008-2018

BEFORE: BENDER, P.J.E., BOWES, J., and PELLIGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 22, 2020

       Appellant, Todd Harr (Mr. Harr), appeals from the July 30, 2019 order

of the Court of Common Pleas of Bedford County, which denied his request to

appeal nunc pro tunc for failure to provide evidence of a breakdown in the

court’s operations. After careful review, we reverse and remand for further

proceedings consistent with this memorandum.

       This matter stems from a civil action initiated by John Kelley and Tricia

Kelley (the Kelleys) against Mr. Harr in the magisterial district at MDJ-57-3-

01. A judgment was entered on August 28, 2018, in the amount of $9,500.00,

in favor of the Kelleys and against Mr. Harr. On September 25, 2018, Mr.

Harr filed a pro se appeal in the Court of Common Pleas of Bedford County,

but failed to file a proof of service regarding his notice of appeal, as required
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*Retired   Senior Judge assigned to the Superior Court.
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under Pa.R.C.P.M.D.J. No. 1005b. Consequently, the trial court granted the

Kelleys’ praecipe to strike the appeal.

      Mr. Harr subsequently obtained counsel and filed a motion to reinstate

his appeal on December 19, 2018. The trial court denied the motion by order

of court dated February 4, 2019. The order was docketed and sent out to the

parties on February 5, 2019. Accordingly, Mr. Harr had until March 7, 2019

to file an appeal. See Pa.R.A.P. 903(a) (requiring notice of appeal to be filed

within thirty days after the entry of the order from which the appeal is taken);

Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1120 (Pa. Super.

2004) (explaining that an order is “entered” when it has been docketed and

notice of the docketing has been given to the parties).

      According to Mr. Harr, he mailed a notice of appeal to the office of the

Bedford County Prothonotary on February 27, 2019, and it was timely received

by the prothonotary on March 4, 2019. The notice was not time-stamped and

docketed, however, until March 13, 2019, six days after the appeal deadline.

As a result, by per curiam order dated April 30, 2019, this Court quashed Mr.

Harr’s appeal at 406 WDA 2019, without prejudice for him to seek an appeal

nunc pro tunc in the trial court.

      On May 10, 2019, Mr. Harr filed a motion for leave to appeal nunc pro

tunc with the trial court, and alleged that the delay in the filing of his original

notice of appeal was caused by a breakdown in the court’s operations and

non-negligent circumstances. In support of his claims, Mr. Harr attached a




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declaration from his counsel’s assistant, Karen Marraccini (Ms. Marraccini),

dated April 3, 2019, in which she averred the following:

           On or about February 25, 2019, I contacted the
     prothonotary of Bedford County to confirm the cost to file an
     appeal to the Superior Court. I spoke to a clerk and was advised
     that the costs would be $128.75[,] payable to [the] Bedford
     County [P]rothonotary and $90.25[,] payable to [the] Superior
     Court of Pennsylvania….

          On February 27, 2019, I mailed the notice of appeal to
     Bedford County to be filed[.]

            On March 4, 2019, I received a phone call from [Barbara
     Himmler (Ms. Himmler)] of the Bedford County [P]rothonotary
     indicating that the cost check of $128.75 was incorrect[,] and that
     the correct amount was $57.00. I advised [Ms. Himmler] that our
     office manager was out of the office on vacation and that she was
     responsible for issuing checks[,] and that the $57.00 check would
     not be able to go out until the following week. [Ms. Himmler] told
     me that would not be a problem. I then asked [her] if the notice
     of appeal would be filed because the deadline was approaching[,]
     and [she] told me that she [would] mark the notice of appeal as
     filed that very day, March 4, 2019. [Ms. Himmler] further
     indicated that she would then forward the $128.75 check back to
     my attention. Following my conversation with [her], I requested
     a check.

           On April 11, 2019, I mailed a check payable to [the] Bedford
     County [P]rothonotary[,] in the amount of $57.00. We then
     received the receipt for payment from [the] … prothonotary[,] as
     well as the incorrect check [in the amount] of $128.75

Motion for Leave, Exhibit 6 (“Declaration”), 5/10/19, at 1-2 (unnumbered;

unnecessary capitalization and references to attached documents omitted).

     On June 4, 2019, the trial court held an evidentiary hearing on the

motion.   At the hearing, the Kelleys did not concede to Ms. Himmler’s

Declaration, but acknowledged that “if, in fact, what is alleged to have

happened happened[,] then we would concede [that] the [p]rothonotary’s

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[o]ffice should have docketed the appeal in a timely fashion…. But I have no

idea what took place between the [p]rothonotary’s [o]ffice and [Mr. Harr’s]

counsel’s office.”     N.T. Hearing, 6/4/19, at 13.    Because of the Kelleys’

perceived objection to the declaration, Mr. Harr’s counsel requested a

continuance to allow him the opportunity to present testimony by Ms.

Marraccini and Ms. Himmler. See id. at 14. The trial court indicated that it

“would rather not continue [the hearing] to another date[,]” and suggested,

rather, that Mr. Harr inquire with the prothonotary’s office as to whether Ms.

Himmler was available to “come up to testify” that day. Id.

        Ms. Himmler appeared at the hearing later that day, as a witness for Mr.

Harr.    In response to her being shown the cover letter and envelope that

accompanied Mr. Harr’s notice of appeal,1 Ms. Himmler admitted that the

handwriting on the top of the letter was hers, and she stated: “I apparently

received this and told them that they sent us the wrong amount. It should

have been $57.00…. I received the check on [March] 13 of [20]19[,] in the

amount of $57.00. And I returned the wrong check amount the same day.”

Id. at 18.2 Ms. Himmler also confirmed that the envelope was post-marked
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1 The cover letter dated February 27, 2019, and the envelope post-marked
the same date, were admitted into evidence and marked jointly as
“Defendant’s 1.” Id. at 15-16.

2 We note that the trial court mistakenly indicated in its Pa.R.A.P. 1925(a)
opinion that Ms. Himmler testified that she received the February 27, 2019
letter and the original check in the wrong amount on March 13, 2019, when,
in fact, her testimony referred to receiving the replacement check in the



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on February 27, 2019, but she could not recall on what date she had received

the notice of appeal. Id. at 19-20. She explained that it is customary for the

staff to write on the back of a notice of appeal the date that it is received, but

Mr. Harr’s appeal notice had no date written on its back.3 Id. at 19.

       On July 30, 2019, the trial court issued an order denying Mr. Harr’s

request to file an appeal nunc pro tunc on the grounds that Mr. Harr failed to

produce any evidence to support the averment in his motion, and that he

failed to meet his burden of proving a breakdown in the court’s operations.

Mr. Harr filed a timely notice of appeal on August 23, 2019, followed by a

timely,     court-ordered    Pa.R.A.P.    1925(b)   concise   statement   of   errors

complained of on appeal. Herein, Mr. Harr presents the following issue for our

review:

       I.     Whether the trial court abused its discretion and/or erred as
              a matter of law in denying [Mr. Harr’s] motion for leave to
              file an appeal nunc pro tunc when the court failed to
              determine when [his] notice of appeal was received by the
              prothonotary, whether a Pennsylvania Rule of Civil
              Procedure was violated, and whether non-negligent
              circumstances existed sufficient to constitute the allowance
              of a nunc pro tunc appeal?

Mr. Harr’s Brief at 8 (unnecessary capitalization omitted).

       Preliminarily, we note that:


____________________________________________


amount of $57.00 on that date. See Trial Court Opinion (TCO), 11/1/19, at
2; N.T. Hearing at 18.

3 The only writing on the back of the notice of appeal was the check number
for the $57.00 replacement check received from Mr. Harr. Id. at 20.

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     “Allowance of an appeal nunc pro tunc lies at the sound discretion
     of the [t]rial [j]udge.” McKeown v. Bailey, 731 A.2d 628, 630
     (Pa. Super. 1999). This Court will not reverse a trial court’s denial
     of a motion for leave to appeal nunc pro tunc unless there is an
     abuse of discretion. Rothstein v. Polysciences, Inc., 853 A.2d
     1072, 1075 (Pa. Super. 2004). “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, 1194-95 (Pa. Super. 2000) (internal quotation
     marks omitted).

Fischer v. UPMC Northwest, 34 A.3d 115, 120 (Pa. Super. 2011).

     “Generally, a [t]rial [c]ourt may grant an appeal nunc pro tunc when a

delay in filing is caused by extraordinary circumstances involving fraud or

some breakdown in the court’s operations through a default of its officers.”

Id. (emphasis added).

     There is a breakdown in the court’s operations where an
     administrative board or body is negligent, acts improperly or
     unintentionally misleads a party. Cases involving a breakdown in
     court operations often involve a failure on the part of the
     prothonotary to fulfill his or her ministerial duties, such as the
     filing of dispositions and other relevant information on the
     appropriate docket, or giving notice of these dispositions to
     interested parties.

Id. (internal citations and quotation marks omitted).

     Moreover,

     where an appeal is not timely because of non-negligent
     circumstances, either as they relate to [the] 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 [the] appellee is not prejudiced by the
     delay, the court may allow an appeal nunc pro tunc.




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Amicone v. Rok, 839 A.2d 1109, 1114 (Pa. Super. 2003) (internal citations

omitted).

       Here, Mr. Harr argues that the trial court erred in denying his motion for

leave to file an appeal nunc pro tunc, as the prothonotary’s failure to docket

his notice of appeal on the date that it was received constituted an

administrative breakdown, for which he was entitled to relief. Mr. Harr’s Brief

at 17. He avers that the trial court improperly disregarded the evidence he

presented in support of his claim, without any explanation.            Id. at 20.

Additionally, Mr. Harr claims that the trial court abused its discretion in failing

to find that the circumstances surrounding the filing of his notice of appeal

constituted a non-negligent delay. Id. at 22.

       We agree with Mr. Harr that the delay in the filing of his notice of appeal

was the result of a breakdown in the court’s operations. Pursuant to Pa.R.A.P.

905(a)(3), it is the prothonotary’s duty to time-stamp a notice of appeal

immediately upon receipt of the notice, and that date shall constitute the date

that the appeal is taken.4 We have consistently held that a prothonotary’s
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4In Commonwealth v. Williams, 106 A.3d 583 (Pa. 2014), our Supreme
Court explained:

       The use of the word “shall” in Rule 905(a)(3) leaves the lower
       court clerk no discretion in its application of the rule. Very simply,
       the lower court clerk must time-stamp a notice of appeal
       immediately upon receipt.

             The clerk of courts, therefore, lacks the authority to reject,
       as defective, a timely notice of appeal. To hold otherwise would
       repudiate the directive of [Pa.R.A.P.] 902 that a timely notice of



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failure to time-stamp a notice of appeal upon receipt, in accordance with Rule

905(a)(3), constitutes a breakdown of the court’s operations and entitles the

petitioner to an appeal nunc pro tunc. See Nagy v. Best Home Services,

Inc., 829 A.2d 1166, 1168 (Pa. Super. 2003) (determining that the

prothonotary’s failure to time-stamp or docket a timely-filed, albeit flawed,

notice of appeal upon receipt of the notice constituted a breakdown in the

court’s operations); McKeown v. Bailey, 731 A.2d 628 (Pa. Super. 1999)

(concluding that the trial court abused its discretion in not granting the

appellants’ petition to appeal nunc pro tunc where the delay in filing the notice

of appeal was caused by a breakdown in the court’s operation, i.e., the

prothonotary’s failure to time-stamp the notice of appeal upon receipt).

Moreover, “the perfection of [an] appeal does not depend in any way on the

payment of the filing fee.” First Union Nat’l Bank v. F.A. Realty Investors

Corp., 812 A.2d 719, 723 (Pa. Super. 2002).             “An appeal filed within the

allowed time period without the requisite fee will still be considered valid.” Id.

       Thus, it is clear that in the present matter, Mr. Harr’s notice of appeal

should    have    been     time-stamped        immediately   upon   receipt   by   the

prothonotary and considered filed on that same date.            Instead, the record

____________________________________________


       appeal is self-perfecting. It would also contravene the plain
       language of Rule 905(a)(3), which unequivocally requires the
       clerk for the lower court to time-stamp a notice of appeal
       immediately upon receipt.

Id. at 588.


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establishes that Ms. Himmler set the notice of appeal aside after determining

that the accompanying filing fee was in the wrong amount, without first time-

stamping it in accordance with Rule 905(a)(3).      We acknowledge that the

actual date of the prothonotary’s receipt of the notice of appeal was not

established with certainty. The record indicates, however, that it was likely

received prior to the deadline of March 7, 2019 and, presumably, on or before

March 4, 2019, the date of the phone call Ms. Marraccini reported to have

received from Ms. Himmler.

      Although Ms. Himmler could not specifically recall receiving Mr. Harr’s

notice of appeal or calling Ms. Marraccini on March 4, 2019, Ms. Marraccini’s

account of events is corroborated by the cover letter and envelope to the

notice of appeal, which were admitted into evidence at the June 4, 2019

evidentiary hearing. According to Ms. Marraccini, when she told Ms. Himmler

during the call that she would mail a check in the correct amount the following

week, Ms. Himmler replied that “that would not be a problem … and … that

she [would] mark the notice of appeal as filed that very day, March 4, 2019.”

See Declaration at 1. She also declared that Ms. Himmler indicated she would

set the case aside to await the new check. Id. This corresponds with the

envelope post-marked February 27, 2019, which contained Ms. Himmler’s

handwritten note, “waiting on check.” See Defendant’s 1.

      Ms. Marraccini further indicated that, on March 11, 2019, she mailed a

check payable to the Bedford County Prothonotary in the correct amount of

$57.00, and that she subsequently received a receipt for this payment, along

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with the original check in the amount of $128.75, via mail from the

prothonotary.      See Declaration at 1.       This correlates with Ms. Himmler’s

handwritten note on the February 27, 2019 cover letter, which read:

“Returned wrong amount[.] Should have been $57.00[.] Sent check on 3-

13-19[.]” Defendant’s 1.5 Based on our review of the record, we conclude

that the trial court erred in finding that Mr. Harr “failed to produce any

evidence” in support of his motion. See TCO at 2. To the contrary, we deem

Mr. Harr to have satisfied his burden of proving a breakdown in the court’s

operations.

       Finally, taking into account this Court’s decision to grant nunc pro tunc

relief in First Union Nat’l Bank, supra, where no filing fee was paid,6 it is

abundantly clear that Mr. Harr’s appeal should have been deemed valid and

filed immediately upon receipt, regardless of whether it was accompanied by

the proper filing fee. Ms. Himmler lacked the authority to reject the timely-


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5 Ms. Himmler testified at the evidentiary hearing that the handwriting on both
the February 27, 2019 cover letter and the corresponding envelope was hers.
See N.T. Hearing at 18-19.

6 In First Union Nat’l Bank, counsel for the appellant submitted a notice of
appeal to the prothonotary’s office with no filing fee whatsoever. Despite the
failure to pay the filing fee, the prothonotary time-stamped the notice of
appeal on the date it was received in accordance with the Pennsylvania Rules
of Appellate Procedure, and then proceeded to hold the notice of appeal aside
until the fee was paid. Even though the filing fee was not paid until almost
four months later, we determined that the notice of appeal was properly
deemed filed on the date it was originally received and time-stamped by the
prothonotary. Id. at 722.


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filed notice of appeal, even if she deemed it to be defective. See Williams,

supra. We also find it worth noting that, upon learning of the mistake

regarding the filing fee, Mr. Harr proceeded in a timely manner to mail a check

in the correct amount, and that the original check mailed to the prothonotary

was for an amount substantially greater than the actual requisite filing fee.

      Based on the foregoing, we determine that the trial court abused its

discretion in denying Mr. Harr’s request for nunc pro tunc relief. “When a

movant is entitled to a nunc pro tunc appeal because of a breakdown in court

operations,   the   only   additional    requirement   that   the   movant   must

demonstrate is that he pursued his motion for leave to appeal nunc pro tunc

within a reasonable amount of time.”        Fischer, 34 A.3d at 123 n.7 (citing

Nixon v. Nixon, 198 A. 154 (Pa. 1938) (stating that if the reasons for delay

in appeal is due to the court, an appellant must appeal within a reasonable

amount of time)). Instantly, Mr. Harr’s appeal was quashed on April 30, 2019,

and he filed his motion to appeal nunc pro tunc on May 10, 2019. We conclude

that he acted in a reasonable amount of time by filing his motion within ten

days of the quashal of his appeal. See id. (finding that the appellants acted

within a reasonable amount of time by filing their motion for leave to appeal

nunc pro tunc within five days of receiving a copy of the order quashing their

appeal); see also Amicone, 839 A.2d at 1115-16 (determining that even

though there was a breakdown in court operations, the movant was not

entitled to nunc pro tunc relief where he waited more than four months to file

his petition and offered no satisfactory explanation for the lengthy delay).

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     Given our determination that there was a breakdown in the court’s

operations, we deem Mr. Harr’s argument that the delay in the filing of his

notice of appeal was the result of non-negligent circumstances to be moot.

Thus, we need not address the merits of this claim.

     Accordingly, we reverse the trial court’s July 30, 2019 order and remand

this matter for proceedings consistent with this memorandum.

     Order reversed. Case remanded. Jurisdiction relinquished.

     Judge Bowes joins this memorandum.

     Judge Pellegrini files a dissenting memorandum.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/2020




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