J-S01035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK, N.A. SUCCESSOR                  IN THE SUPERIOR COURT OF
BY MERGER TO WELLS FARGO HOME                           PENNSYLVANIA
MORTGAGE, INC., BACKED
CERTIFICATES, SERIES 2005-OPTI

                            Appellee

                       v.

MARY SHIRLEY GOLPHIN

                            Appellant                  No. 1398 EDA 2015


                 Appeal from the Order Entered April 13, 2015
                In the Court of Common Pleas of Monroe County
                      Civil Division at No(s): 2232 CV 2007


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED FEBRUARY 18, 2016

       Appellant, Mary Shirley Golphin, appeals from the order entered in the

Monroe County Court of Common Pleas, which denied her petition to strike

off and open judgment and/or reinstate her appellate rights. We affirm.

       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.1 Therefore, we have no reason to

restate them.

       Appellant raises the following issue for our review:

____________________________________________


1
  On September 23, 2015, this Court issued rule to show cause why the
appeal should not be quashed or dismissed for failure to file timely post-trial
motions. Appellant responded on October 2, 2015.
J-S01035-16


         MAY A TRIAL COURT SUMMARILY DISMISS A REQUEST TO
         OPEN A JUDGMENT AND/OR REINSTATE A PARTY’S
         APPELLATE RIGHTS WITHOUT ISSUING A RULE TO SHOW
         CAUSE OR HOLDING A HEARING?

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jonathan

Mark, we conclude Appellant’s issue merits no relief.         The trial court’s

opinion comprehensively discusses and properly disposes of the question

presented.    (See Trial Court Opinion, filed September 1, 2015, at 7-13)

(finding: Appellant filed notice of appeal before filing post-trial motions,

which resulted in waiver of issues on appeal; Appellant subsequently filed

untimely post-trial motions without requesting leave to file motions nunc pro

tunc; court lacked jurisdiction to hear and decide untimely post-trial

motions; Appellant has not specifically sought leave to file post-trial motions

nunc pro tunc, and her petition to strike and open judgment and/or reinstate

her appellate rights could not overcome waiver; in alternative, Appellant’s

petition failed to plead any valid reason to grant relief Appellant requested;

petition failed to allege any record defect that would justify striking

judgment, and no defect appears on face of record; Appellant’s petition was

also untimely filed, as she did not file petition until almost four months after

court found in Appellee’s favor; Appellant’s petition was also incorrect

procedural vehicle to seek permission to file post-trial motions out of time;

Appellant should have filed motion for leave to file post-trial motions nunc

                                     -2-
J-S01035-16


pro tunc to cure waiver of issues on appeal; petition fails to allege equitable

basis for opening judgment or reinstating appellate rights). 2      The record

supports the trial court’s decision; therefore, we see no reason to disturb it.

Accordingly, we affirm on the basis of the trial court’s opinion.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016




____________________________________________


2
  We depart from the court’s opinion to the extent it states Appellant should
have appealed from the denial of her untimely post-trial motions. (See Trial
Court’s Opinion at 10).       Technically, Appellant’s appeal lay from the
judgment entered on the verdict.          Zitney v. Appalachian Timber
Products, Inc., 72 A.3d 281, 285 (Pa.Super. 2013). Any appeal filed prior
to that date (March 10, 2015) was actually premature. That procedural
glitch in the case, however, does not excuse the waiver of Appellant’s issues
for her failure to file timely post-verdict motions or leave of court to file
them nunc pro tunc.



                                           -3-
                                                               Circulated 01/26/2016 03:33 PM




                COURT OF COMMON PLEAS OF MONROE COU~Ao
                      FORTY-THIRD JUDICIAL DISTRICT                           'i:A10{/fae,11i1"
                    COMMONWEALTH OF PENNSYLVANIA    S[p                                    'fir
                                                                                 12015

WELLS FARGO BANK, N.A.,
                                                                    PH11..,..DE(pµ
                                                                          A


SUCCESSOR BY MERGER TO WELLS                                                        d/)1
FARGO HOME MORTGAGE, INC.

               Plaintiff,                         NO. 2232 CIVIL 2007

               v.                                 Appeal Docket No. 1398 EDA 2015

MARY SHIRLEY GOLPHIN,

               Defendant


                            SUPPLEMENTAL APPEAL OPINION

        This case is before the Court on Defendant's appeal from the order dated April

10, 2015, that denied her petition to "Strike Off and Open Judgment and/or to

Reinstate Appellate Rights (the "Reinstatement Petition")." This opinion supersedes

and replaces the appeal opinion previously issued on June 25, 2015.

                                    BACKGROUND

        Although Defendant believes the· case involves much more, this is a basic

mortgage foreclosure action. On December 17, 2014, a non-jury trial was convened.

Defendant appeared represented by the attorney who had represented her from the
                                                                                                  -
beginning of this case as well as in a related federal action Defendant filed against

Plaintiff and several other in the Middle District of Pennsylvania. At the conclusion of

trial, the undersigned issued a decision finding "in favor of Plaintiff, Wells Fargo Bank.

. .   and against Defendant, Mary Shirley Golphin, in the amount of $473,880.46, plus

interest, for foreclosure and sale of the mortgaged property." The decision was
    interest, for foreclosure       and sale of the mortgaged property."       The decision was

    entered of record the next day. On December 19, 2014, the Prothonotary served the

    decision on counsel for both parties and filed an affidavit of service.

            Neither party filed post-trial motions. Similarly, neither party entered judgment

    on the verdict. Nonetheless, there were several other filings.

           On December 24, 2014, Defendant filed a prose request for a transcript of the

    trial. An order was issued directing the Official Court Monitor to transcribe the trial

    upon payment by Defendant of the $420 transcription fee. Defendant did not tender

    payment within the time allotted in the transcription order. Accordingly, the order was

rescinded.

           On January 9, 2015, despite still being represented by her trial counsel who

filed an appeal on her behalf three days later, Defendant filed a pro se petition to

proceed in forma pauperis. The petition was denied. Defendant did not challenge the

denial.

           On January 12, 2015, without filing post-trial motions or entering judgment on

the verdict, Defendant filed a counseled appeal (the "First Appeal") 1 from the

December 18, 2014 decision.

           On January 30, 2015, we filed an appeal opinion (the "First Appeal Opinion")

expressing our belief that the appeal should be dismissed or quashed. We reasoned

that, because neither party had entered judgment on our decision, the appeal was at

best premature. Additionally, and much more substantively, we pointed out that



1
    The First Appeal was docketed in the Superior Court to No. 267 EDA 2015.


                                                        2
Defendant had waived her appeal issues by failing to file post-trial motions. A copy of

the First Appeal Opinion is attached and incorporated as Appendix A.

        On February 11, 2015, through trial counsel, Defendant filed an untimely

motion for a new trial and an untimely motion for judgment notwithstanding the

verdict. The motions did not allege any basis for the delay. Defendant neither sought

nor obtained leave of this Court or the Superior Court to file the motions out-of-time.

        On February 13, 2015, we issued a memorandum opinion and order denying

both motions, finding . that we lacked jurisdiction to entertain the order because

Defendant had filed an appeal.'      Additionally, and alternatively, we expressed our

belief that we could not (and should not) decide the motions because they were

untimely filed, Defendantdid     not even seek .permission to file the motions nunc pro

tune,   an appeal had already been filed,        and Plaintiff   had not been given the

opportunity to contest the timeliness of the filings.   A copy of the February 13, 2015

memorandum and order is attached and incorporated as Addendum B. Defendant

has not challenged the denial.

        On March 2, 2015, the Superior Court issued an order dismissing the First

Appeal. The Superior Court found that Defendant had failed to preserve any issues

for appellate review because she did not file post-trial motions.

        On March 10, 2015, Plaintiff entered judgment on our decision. Three days

later, Defendant's trial counsel withdrew his appearance in favor of Defendant's

current attorney.




                                             3
       On April 6, 2015, three and one-half months after the decision was entered,

almost two months after the untimely motions for a new trial and for judgment NOV

were denied, and thirty-four days after the Superior Court dismissed the First Appeal,

Defendant through her new attorney filed the Reinstatement Petition. In that petition,

Defendant alleged only that she:

              3. Was not informed of her opportunity to file post-trial
              motions and as a result her appeal to the Superior Court
              was denied by order of March 2, 2015.
              4. Accordingly, there was a breakdown in the judicial
              process which denied Defendant the opportunity to file
              post-trial motions and to ensure that her appellate rights
              were maintained.

(Reinstatement Petition,   ,r,r 3   and 4). Defendant did not cite any legal authority for

her assertions. Similarly, Defendant did not specify who allegedly failed to inform her

of the requirement that post-trial motions must be timely filed to preserve appeal

rights, explain why she attempted to proceed prose immediately after the decision

was entered, or even attempt to account for her failure to seek leave to file post-trial

motions nunc pro tune or otherwise justify the procedural errors that have been

made, compounded, and parlayed.

       By order dated April 10 and entered on April 13, 2015, we denied the

Reinstatement Petition. In the order, we summarized our reasoning as follows:

             1.     Defendant has not articulated any cognizable factual
             or legal basis for the relief she has requested;

             2.     The Petition is untimely; and

             3.     To the extent that Defendant's Petition was based
             on attorney error, this error would not entitle Defendant to
             have her appellate rights reinstated. See Shofield v. Dep't.



                                              4
              of Transp., Bl!r. of Driver Licensing, 628 A.2d 510, 513 (Pa.
              Cmwlth. 2003) ( "Our research has failed to reveal any
              cases ... to allow a nunc pro tune appeal in a civil case due
              to counsel's negligence in failing to file a timely appeal.);
              see also Moring v. Dunne, 493 A.2d 89, 91 (Pa. Super.
              1985) ("[T]he mere neglect or mistake of the appellant or
              his counsel is not considered a sufficient excuse for failure
              to file a timely appeal.").

(Order, filed April 13, 2015).

       On May 7, 2015, Defendant filed a timely notice of appeal (the "Second

Appeal") from the order denying the Reinstatement Petition. On receipt of the notice,

we issued an order directing Defendant to file a statement of errors complained of on

appeal pursuant to Pa. R.A.P. 1925(b) within twenty-one (21) days.

       Subsequently, counsel for Defendant .prepared a Rule 1925(b) statement and

a certificate of service indicating that the statement had been served on both counsel

for Plaintiff and the undersigned. He then apparently gave the statement and

certificate to Defendant.

       On May 27, 2015; Defendant personally filed the 1925(b) statement and

certificate of service that her attorney had given her. However, she did not serve a

copy on the undersigned. In fact, later the same day, Defendant filed a separate pro

se certificate of service indicating that the statement had been mailed only to counsel

for Plaintiff. As Defendant and her attorney acknowledged at a later hearing, the

statement was not served on the undersigned until much later. For reasons still

unexplained, the Prothonotary date-stamped the filings personally submitted by

Defendant, but did not immediately file or scan them into the record.




                                           5
       Subsequently,    the Court issued an opinion ("Second Appeal Opinion") in

accordance with Pa. R.A.P. 1925(a). As of the date the Second Appeal Opinion was

prepared, Defendant's Rule 1925(b) statement did not appear of record and a copy

had not been served on the undersigned. Accordingly, in the Second Appeal Opinion

we expressed our belief that Defendant had waived her appeal issues by failing to file

a statement.

       Thereafter, counsel for Defendant delivered a copy· of the statement to the

undersigned and filed a petition to correct the record, seeking to have the statement

properly docketed, indexed, and recorded as of the date Defendant filed it. A hearing

was held. Defendant and her attorney appeared; counsel for Plaintiff elected not to

attend. At the conclusion of the hearing we entered an order granting the petition to

correct the record. The order provided, in part, that:

               The Court now finds and recognizes that a Rule 1925(b)
               Statement was timely filed. However, it was neither timely
               nor properly served on the undersigned. As a result of this
               finding:

                     1. The portion of the Opinion we issued on June 25,
               2015 Pursuant to Pa. R.A.P. 1925(a) which indicated that
               Defendant did not file a statement is VACATED.

                      2. Defendant is granted ten (10) days from receipt
               of this Order within which to either: (a) file an amended
               Rule 1925(b) statement; or (b) file of record a statement
               indicating that no Amendment will be submitted. The
               amendment or statement shall be served on the
               undersigned as well as on counsel for Plaintiff.

                     3. This Court respectfully requeststhat the Superior
               Court grant additional time for Defendant to file an
               amended statement, and thereafter, for this Court to file a
               supplemental appeal opinion.



                                            6
(Order filed July 27. 2015).

       Thereafter, counsel for Defendant filed a Rule 1925(b) statement which is

identical to the statement that Defendant had previously submitted. This time,

counsel filed and served the statement himself. In both versions of the statement,

Defendant raises only the single contention that we "erred in denying Defendant the

opportunity to present her testimony and evidence at a hearing with regard to her

[Reinstatement Petition]." For the reasons that follow, Defendant's contention is

without merit.

                                      DISCUSSION

       Our reasons for denying the Reinstatement Petition were summarized in the

order dated April 10 and entered on April 13, 2015. We did not convene a hearing

because in our view the petition was facially devoid of merit. Additionally, we believed

that, even if the relief requested by Defendant was granted,· she could not overcome

the waiver of appeal issues. In more expanded terms:

       Fundamentally, we denied the· Reinstatement Petition because, under the

specific facts, circumstances, and procedural history of this case, we believed that

even· if the judgment were stricken or opened Defendant could not overcome the

waiver of issues that has resulted from her failure to timely file post-trial motions at a

point in the case when this Court had jurisdiction to decide them. Additionally, we felt

that the petition was untimely. Further, as to the petition itself, we found that

Defendant did not plead a cognizable reason or legal basis for striking or opening the

judgment or for reinstating her appeal rights.



                                            7
        Prompted by this appeal, we have reviewed our decision and rationale. We

 continue to believe that our denial of the Reinstatement Petition was correct under

the facts and the law.

        It is well-settled that the filing of post-trial motions is mandatory if a litigant

wishes to preserve issues for appellate review. Specifically, Pa R.C.P. 227.1 requires

parties to file post-trial motions within ten days of the verdict or decision in order to

preserve issues for appeal. If an issue has not been raised in a post-trial motion, it is

waived for appeal purposes. See Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996 (Pa.

2001); Lane Enterprises, Inc. v. L.B. Foster Co., 710 A.2d 54 (Pa. 1998); D.L. Farrey

& Associates, Inc. v. Fuel City Truck Stop, lnc., 71 A.3d 915 (Pa. Super.· 2013);

Warfield   v.   Shermer, 910 A.2d 734, 737 (Pa. Super. -2006); Sovereign Bank            v.
Valentino, 914 A.2d 415 (Pa.Super.2006); Diener Brick Co. v. Mastro Masonry

Contractor, 885 A.2d 1034 (Pa. Super. 2005); Lenhart      v.   Cigna Companies, 824 A.2d

1193 (Pa. Super. 2003); Hysong v. Lewicki, 931 A.2d 63 (Pa. Cmwlth. 2007).

       Viewed alone, the ten day time period of Rule 227.1 is a procedural rather

than a jurisdictional requirement. As a result, trial courts generally have broad

discretion to either strike untimely motions or exercise their equitable powers to hear

such motions, at least where there is no formal oblectlon by or prejudice to the

opposing party. See D.L. Forrey & Associates, supra (and cases cited therein); Behar

v. Frazier, 724 A.2d 943 (Pa. Super. 1999). However, there are limits on the trial

court's discretion to hear an untimely motion. Initially, the trial court must have

jurisdiction. As a result, to be heard, an untimely motion must be filed during the post-




                                            8
trial stage, before an appeal is filed. Once an appeal is filed, jurisdiction is lost. D.L.

Forrey & Associates, supra. See Sahutsky, supre; Lane Enterprises, supra; Lenhart,

supra. If an appeal is dismissed (or waiver of issues is found) for failure to file post-

trial motions, a subsequent request for leave to file post-trial motions nunc pro tune

will be decided under a narrow "extraordinary circumstances" standard. D.L. Forrey &

Associates, supra; Lenhart, supra. See Criss v. Wise, 781 A.2d 1156, 1159 (Pa.

2001 ); Schofield v. Department of Transportation, Bureau of Driver Licensing, 828

A.2d 510, 512 (Pa. Cmwlth. 2003), appeal denied, 837 A.2d 1179 (Pa. 2003). At that

stage, the party seeking permission to file post-trial motions (or an appeal) out-of-

time must show fraud, .breakdown inthe operations of the court, or that the failure to

timely file resulted from non-negligent circumstances, either as they relate to the filing

party or the party's counsel. Negligence, including attorney negligence, will not satisfy

the standard. See Criss, supra; Alles v. Department of Transportation, Bureau of

Driver Licensing, 565 Pa. 279, 773 A.2d 126 (2001 )(per curiam opinion); D.L. Forrey

& Associates, s_upra; Schofield, supra; Lenhart, supra. Additionally, under the cited

cases and numerous other decisions, a court may not permit an untimely filing if the

non-moving party will be prejudiced. Finally, the length of the delay and the reasons

for the delay must be considered.

       In this case, Defendant did not file post-trial motions before an appeal was

filed. As a result, she waived her appeal issues.

       Defendant later filed untimely post-trial motions. However, she did so after she

appealed our decision and without asking either this Court or the Superior Court for




                                            9
leave to file the motions nunc pro tune. As a result, we lacked jurisdiction to hear and

decide the motion. In fact, we denied the untimely motions for these reasons.

Significantly, Defendant did not appeal the denial of her untimely post-trial motions.

       Once the F'irst Appeal was decided, Defendant's remedy was to file a motion

seeking leave to file post-trial motions out-of-time. Incredibly, Defendant still has not

specifically sought leave to file post-trial motions nunc pro tune.

       Simply, without such a formal request, backed up by facts that would meet the

"extraordinary circumstances" standard, even if the judgment is stricken or opened

and Defendant's appeal rights are reinstated there is no procedural or substantive

basis to excuse the waiver occasioned by her failure to file post-trial motions. Stated

another way, granting the relief requested by Defendant would have been

meaningless because her appeal issues would still have been waived and no proper

request to cure the waiver had been made. Given these facts and circumstances,all

of which are clear from the record, denial of the Reinstatement Petition without a

hearing was proper.

       Additionally, and alternatively, the Reinstatement Petition failed to state a valid

basis for granting the relief Defendant requested.

       The petition seeks various forms of relief. The first request is that the judgment

be stricken. "A petition to strike a judgment will not be granted unless a fatal defect in

the judgment appears on the face of the record. Matters outside of the record will not

be considered, and if the record is self-sustaining, the judgment will not be stricken."

See Bell v. Kater, 943 A.2d 293, 295 (Pa. Super. 2008) (citation omitted), appeal




                                            10
denied, 960 A.2d 454 (Pa. 2008). Here, Defendant did not allege any record defect

that would justify striking the judgment. Similarly, no such defect appears on the face

of the record. In this regard, Defendant's assertion that she was "not informed"of the

requirement to file post-trial motions, even if true, is not the type of a defect that .

would appear on the face of the record. Accordingly, Defendant failed to plead any

cognizable basis for striking the judgment.

       The second and third requests for relief ask that the judgment be opened and

Defendant's appeal rights be reinstated. Trial courts possess the power to grant the

equitable relief requested by Defendant. However, the facts and circumstances must

be sufficient to warrant invocation of a court's equitable powers, the proper

procedural request must be made, and the moving party must seek relief quickly and

assert a facially valid claim or defense. Here, the equities are not with Defendant.

       As indicated, Defendant did not act quickly. The Reinstatement Petition was

not filed until three and one-half months after the decision was entered, almost two

months after the untimely motions for a new trial and for judgment NOV were denied,

and thirty-four days after the Superior Court dismissed the First Appeal.

       Moreover, the Reinstatement Petition was an incorrect procedural vehicle by

which to seek the full remedy -- permission to file post-trial motions out-of-time-- that

Defendant ultimately needs to file a valid appeal from the verdict. The correct vehicle

would have been a motion for leave to file post-trial motions nunc pro tune. This is not

simply a matter of procedural form over substance. As discussed above, even if the

judgment were opened, appeal rights reinstated, or both, Defendant.would still need




                                           11
 to seek and be granted leave to file post-trial motions in order to cure the waiver of

 her appeal issues. In this regard, the Reinstatement Petition did not assert that

 Defendant intends to file a motion for nunc pro tune relief, that she currently has

 cognizable grounds for seeking leave to file post-trial motions out-of-time, or that, if

allowed to appeal, she has facially valid appeal issues.

        Substantively, the Reinstatement Petition does not allege a valid reason or

equitable basis for opening the judgment or reinstating appeal rights. Defendant's

requests for relief are based solely on her contention that she was "not informed" that

she had to file post-trial motions. As noted, she does not specify who purportedly

failed to inform her. To the extent that Defendant implies that there was a breakdown

in the operation of the Court because the Court did not inform her of the procedural

steps she needed to take in order to challenge the decision, there is no requirement

that the Court advise a represented Defendant of the requirement to file post-trial

motions. Similarly, as discussed, to the extent Defendant is claiming that her trial

attorney failed to properly advise her, attorney negligence is not a valid basis for

reinstating appeal rights, opening a judgment, or overlooking the failure to file or to

timely file post-trial motions.

       Finally, while seeking equitable remedies," and while tacitly blaming her prior

attorney for waiving her appeal issues, Defendant did not explain why she acted or

attempted to act pro se during the ten-day period for filing post-trial motions. Along

similar lines, Defendant did not explain why she did not appeal our d_enial of her

untimely post-trial motions, an omission that could by itself derail any request




                                           12
 Defendant might make for leave to file a second set of post-trial motions out-of-time.

 While these facts may be somewhat tangential,         they do help point out that the

 equities are not on Defendant's side.

           In sum, it was clear to us that Defendant was not entitled to the relief she

 sought,    She did not plead a defect that was clear on the face of the record,

 "extraordinary circumstances,"    or any cognizable basis for equitable relief. In any

 event, granting the relief Defendant       requested would have been meaningless

 because doing so would not and could not have cured the waiver. Since the relevant

 facts and      circumstances   were clear from    the record   and the face     of the

 Reinstatement petition, there was no need for a hearing.

           For these reasons, we believe that the order denying the Reinstatement

 Petition should be affirmed.

                                                         BY THE COURT:




 DATE:_?J__;,/_=>_t
                  _{        «:
. Cc:      Superior Court of Pennsylvania
           Jonathan Mark, J.
           T.AxelJones, Esq.
           Gregory F. Vizza, Esq.




                                             13
