           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wilmington Township                      :
                                         :
                   v.                    :   No. 457 C.D. 2019
                                         :   Argued: February 10, 2020
Carrie Hahn,                             :
                         Appellant       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE J. ANDREW CROMPTON, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: March 2, 2020


      Carrie Hahn (Appellant) appeals from the March 19, 2019 Order of the Court
of Common Pleas of Lawrence County (common pleas), which granted a Motion to
Strike (Motion) filed by Wilmington Township (Township), striking Appellant’s
Petition to Enforce a Final Determination of the Office of Open Records (OOR) from
the record with prejudice. Appellant asks this Court to vacate the Order and remand
the matter for common pleas to hold an evidentiary hearing regarding whether
Appellant’s former counsel had authority to consent on her behalf to a settlement
agreement that resulted in the underlying action being discontinued. Because
Appellant’s Petition to Enforce was filed more than 30 days after the underlying
matter was voluntarily discontinued by Township, common pleas determined it
lacked jurisdiction to hear it and, accordingly, granted Township’s Motion and
struck Appellant’s Petition to Enforce. Upon review, we affirm the Order to the
extent it granted Township’s Motion and struck Appellant’s Petition to Enforce but
we reverse the Order to the extent it dismissed the matter with prejudice. Upon
remand of the matter, common pleas should permit Appellant to file a motion to
strike the discontinuance that conforms to the applicable rules within 30 days.


I.    BACKGROUND
      The relevant procedural and factual history of this case is recounted by
common pleas in its opinion issued pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), Pa.R.A.P. 1925(a), as follows:

             The instant appeal has its genesis in a request for public records
      under the Right-to-Know Law[1] (RTKL) . . . filed by [Appellant] with
      Township beginning on October 26, 2017. . . . Specifically, [Appellant]
      sought from Township “invoices for Professional Service [sic] from
      Louis M. Perrotta, P.C.” Township’s solicitor, for the period spanning
      January 29, 2016 to October 31, 2017. [] Township, after invoking a
      thirty-day extension pursuant to [Section 902 of the RTKL,] 65 P.S.
      § 67.902, responded on November 29, 2017, by granting [Appellant]’s
      request in part and denying it in part by redacting portions of the
      invoices that it claimed were protected by attorney-client privilege and
      work-product doctrine. []

             Dissatisfied with the redactions and the grounds for them
      asserted by Township, [Appellant] appealed to the [OOR] on December
      7, 2017. [] The OOR, after performing an in camera review of the
      original, unredacted versions of the disputed records, rendered its Final
      Determination on January 12, 2018, which both affirmed and denied
      Township’s redactions. [] Importantly, the OOR required Township
      to rescind many redactions for what it considered routine information
      unprotected by attorney-client privilege or work-product doctrine;
      however, the OOR still permitted Township to keep dozens of
      redactions for these same reasons. [] Now the aggrieved party,
      Township elected to petition [common pleas] for judicial review of the

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.


                                                2
OOR’s [Final D]etermination, as permitted by the RTKL, which it did
on March 22, 2018. . . .

       By order dated April 3, 2018, [common pleas] scheduled
Township’s appeal first for a status conference on June 25, 2018. At
that time, [Appellant] lacked an attorney of record, and acted as a pro
se litigant. However, as the status conference drew nigh, Terry
Mutchler, Esq., filed a Praecipe for Entry of Appearance as counsel for
[Appellant] on June 22, 2018. Three days later, on the date the status
conference was to take place, counsel for Township advised [common
pleas] that a settlement had been reached and contemporaneously filed
a Praecipe to Discontinue with the Prothonotary of Lawrence County,
which stated that “[the] parties have reached a settlement in the above-
captioned matters. Kindly discontinue the above-captioned matters
with prejudice.” The Prothonotary, upon receipt of the praecipe,
accordingly marked the case discontinued with prejudice.

        For eight months following Township’s Praecipe to Discontinue,
nothing was filed of record in this case. Then, on February 21, 2019,
[Appellant] filed what she styled a “Petition to Enforce Determination
of Office of Open Records” (Petition to Enforce) alongside a Notice of
Pro Se Appearance. [Appellant] next appeared, and again did so pro
se, . . . at motion court on February 25, 2019, to present a motion to
consolidate this case . . . with another OOR appeal pending with
[common pleas] . . . . [Common pleas] inquired of [Appellant] whether
she had provided proper notice to opposing counsel prior to presenting
her motion and whether Attorney Mutchler remained [Appellant]’s
counsel of record. [Appellant] replied that she had not provided the
appropriate notice to Township’s counsel and that she had not had much
recent contact with her counsel of record. [Common pleas] declined to
entertain [Appellant]’s motion and instead advised her to provide the
necessary notification to Township’s counsel and to have Attorney
Mutchler withdraw her appearance before attempting presentation of
her consolidation motion a second time.

       Thereafter, Attorney Mutchler submitted a Petition to Withdraw
her appearance on February 28, 2019, which [common pleas] granted
by order dated March 13, 2019. Township’s counsel and [Appellant],
pro se, next appeared at motion court on March 13, 2019, this time
before [a different judge], when Township presented a Motion to Strike
Petition to Enforce. Township argued, essentially, that [Appellant]’s
petition should be stricken because the settlement agreement,
memorialized by the extant Praecipe to Discontinue, had been

                                   3
concluded by her attorney with her consent. [Appellant], opposing
Township’s Motion to Strike, attacked the validity of the Praecipe to
Discontinue by asserting that Attorney Mutchler did not have her
permission to enter into a settlement agreement in June 2018, and
further offered to provide [the presiding judge] written copies of her
email correspondence with Attorney Mutchler to substantiate this
claim. [The presiding judge] declined to accept these emails on the
basis that doing so would violate attorney-client privilege and, after
concluding the hearing and taking the matter under advisement,
transferred the decision on the Motion to Strike to the [judge who
initially handled the matter].[]

       [Common pleas], then, on March 19, 2019, issued the Opinion
and Order now on appeal before the Commonwealth Court. [The] order
granted Township’s Motion to Strike and struck [Appellant]’s Petition
to Enforce from the record, with prejudice, on the basis that [common
pleas] lacked any jurisdiction to proceed. In the accompanying opinion,
[common pleas] cited and discussed Section 5505 of the Judicial Code,
42 Pa.[]C.S. §[]5505, and Freidenbloom v. Weyant, 814 A.2d 1253,
1255 (Pa. Super. 2003), overruled on other grounds, Miller Electric
Company v. DeWeese, 907 A.2d 1051 (Pa. 2006), for the proposition
that once 30 days elapse following the trial court’s entry of a final order
in a case, the trial court loses jurisdiction. Accordingly, because the
Praecipe to Discontinue was entered on June 25, 2018, [common pleas]
was divested of jurisdiction over this case on July 25, 2018, nearly
seven months before [Appellant] filed her Petition to Enforce.

       [Appellant] then filed with the Commonwealth Court a “Petition
for Permission to Appeal Nunc Pro Tunc” on April 18, 2019. The
Commonwealth Court, by an April 29, 2019 order of the Honorable
Judge Patricia A. McCullough, treated this petition as [Appellant]’s
Notice of Appeal regarding [common pleas’] Order of March 19, 2019.
Township next came before [common pleas] on May 14, 2019, with a
Motion to Quash [Appellant]’s appeal. [Common pleas] then denied
this motion through an order issued on May 17, 2019, on the basis that,
once again, [it] lacked jurisdiction to act due to the aforementioned
Praecipe to Discontinue and the additional grounds of Pa.[]R.A.P.
1701(a). In the same order, [common pleas] directed [Appellant] to
perfect her appeal in accordance with Pa.[]R.A.P. 904 and file a
Concise Statement of [Errors] Complained of on Appeal (Concise
Statement). On May 31, 2019, [Appellant’s current counsel] filed a
Praecipe for Entry of Appearance on behalf of [Appellant] and
additionally submitted a corrected notice of appeal. Lastly, on June 5,

                                    4
      2019, [Appellant], through her counsel, provided [common pleas] with
      her Concise Statement.

(Common Pleas’ 1925(a) Opinion (Op.) at 2-6 (citations and footnote omitted).)
      In Appellant’s Concise Statement, Appellant raised three issues.              First,
Appellant asserted that common pleas erred in not holding a hearing to accept
evidence on whether Appellant’s former counsel had the authority to settle with
Township on Appellant’s behalf. Second, Appellant asserted that if common pleas
was without jurisdiction, as it concluded, then common pleas “was powerless to
proceed beyond dismissal for want of authority” and, therefore, “the Order
dismissing the Petition to Enforce was a nullity.” (Concise Statement ¶¶ 31-32.)
Third and finally, Appellant asserted common pleas abused its discretion by
dismissing her Petition to Enforce with prejudice.            Specifically, Appellant
maintained “[t]he underlying issue is the validity of the ostensible settlement” and
that Appellant “filed a Motion to Enforce Order instead of a mandamus action.” (Id.
¶¶ 33-34.) Appellant further asserted that “[i]nstead of dismissing [Appellant]’s
Petition to Enforce [] with prejudice, [common pleas] should have, at most,
dismissed her action without prejudice” and that “[d]ismissal without an opportunity
to amend the form of the action and to add parties was an abuse of discretion.” (Id.
¶¶ 36-37 (citing Rule 1033(a) of the Pennsylvania Rules of Civil Procedure,
Pa.R.C.P. No. 1033(a); Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014)).)
      In its opinion in response to Appellant’s Concise Statement, common pleas
stated that a plaintiff may voluntarily discontinue an action by filing a praecipe
pursuant to Rule 229(a) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No.
229(a). Common pleas further stated:

      Praecipes to discontinue have been historically regarded by our
      appellate courts as the equivalent of a final order disposing of all claims


                                          5
       and parties in a case; “between the parties to the action, [a praecipe to
       discontinue] is conclusive as to the cause of action asserted therein.”
       Sustrik v. Jones & Laughlin Steel Corp., 197 A.2d 44, 46 (Pa. 1964).
       These praecipes, then, fit squarely within the larger universe of final
       orders that “end the litigation or dispose of the entire case.” Patton v.
       Hanover Ins[.] Co., 612 A.2d 517, 518 (Pa. Super. 1992). See also
       Pa.[]R.A.P. 341(b) (discussing that for purposes of appealability, a final
       order is “any order that disposes of all claims and of all parties . . .”). It
       is axiomatic, therefore, that a praecipe to discontinue filed by a plaintiff
       as to all defendants is equivalent to a final order that ultimately
       terminates the case at the trial court level.

(Common Pleas’ 1925(a) Op. at 8.)
       Common pleas then reasoned that Section 5505 of the Judicial Code2 provides
that a final order may only be modified or rescinded by a trial court within 30 days
of its entry and a trial court loses jurisdiction outside that window. (Id.) Common
pleas recognized, “as with many rules, exceptions apply,” and a trial court may
modify a final order beyond 30 days if there is “‘a showing of extrinsic fraud, lack
of jurisdiction over the subject matter, a fatal defect apparent on the face of the
record or some other evidence of extraordinary cause justifying intervention by the
court.’” (Id. at 8-9 (quoting ISN Bank v. Rajaratnam, 83 A.3d 170 (Pa. Super.
2013)).) Common pleas also noted that, “[b]esides Section 5505, which applies
generally to the modification or rescission of all final orders, a more specific rule
governs striking a praecipe to discontinue,” namely Pa.R.C.P. No. 229(c). (Common
Pleas’ 1925(a) Op. at 9.) Rule 229(c) provides “[a] court, upon petition and after
notice, may strike off a discontinuance in order to protect the rights of any party
from unreasonable inconvenience, vexation, harassment, expense, or prejudice.”


       2
         Section 5505 provides: “[e]xcept as otherwise provided or prescribed by law, a court
upon notice to the parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from such order has been
taken or allowed.” 42 Pa. C.S. § 5505.


                                               6
Pa.R.C.P. No. 229(c). Common pleas stated that striking discontinuances obtained
by fraud, mistake, or imposition has been generally favored by appellate courts.
(Common Pleas’ 1925(a) Op. at 9.)          However, “[e]ven if fraud, mistake, or
imposition are present, . . . a trial court must still apply a balancing test when
considering granting or striking a discontinuance, in which it must ‘consider all facts
and weigh equities . . . [and] consider the benefits or injuries which may result to the
respective sides. . . [.]’” (Id. (quoting Foti v. Askinas, 639 A.2d 807, 808 (Pa. Super.
1994)).) Common pleas found “[t]his is especially true when the request to strike a
discontinuance comes after significant time has elapsed since its entry.” (Id. (citing
Murdoch v. Murdoch, 210 A.2d 490 (Pa. 1965), and Baumgartner v. Whinney, 39
A.2d 738 (Pa. Super. 1944)).)
      Common pleas explained its Order in the instant matter as follows:

      [T]he entry of Township’s Praecipe to Discontinue, i.e.[,] the final
      order in this case, started the countdown on the 30-day period
      established by 42 Pa.[]C.S. §[ ]5505. When no requests for
      modification or rescission were made within 30 days, and later when
      no requests were made for striking the discontinuance for good cause
      under Pa.[]R.C.P. No. 229(c), [common pleas] presumptively lost
      jurisdiction over this case.

(Common Pleas’ 1925(a) Op. at 10.)
      Common pleas recognized Appellant’s argument regarding the settlement and
stated “[s]uch an allegation would likely fall within the judicially carved exception
to Section 5505 and Pa.[]R.C.P. No. 229(c).” (Id. at 10-11.) It further acknowledged
this Court’s precedent requiring an evidentiary hearing to be held when a party
disputes the validity of a settlement for lack of authority. (Id. at 11 (citing Brannam
v. Reedy, 906 A.2d 635, 641 (Pa. Cmwlth. 2006)).) However, common pleas
concluded that it may not schedule a hearing sua sponte. Instead, common pleas


                                           7
stated “a party must make a motion for the court to act and set forth the appropriate
grounds for doing so, which may then prompt an evidentiary hearing.” (Id. (citing
Rule 208.4(a)(2)(v) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No.
208.4(a)(2)(v)3).)
       Common pleas also stated that “[a] motion to strike a discontinuance based
on a lack of an attorney’s settlement authority must [] comply with the appropriate
rules of procedure the same as any other motion,” including the Pennsylvania Rules
of Civil Procedure and Lawrence County’s Local Rules of Civil Procedure, which
Appellant’s Petition to Enforce did not do. (Id.) Common pleas also found that
Appellant “failed to plainly and adequately develop the material facts . . . underlying
her requested relief aside from a cursory mention of her attorney’s lack of settlement
authority.” (Id. at 11-12.) Common pleas acknowledged that Appellant, at the time,
was proceeding pro se, but stated the courts still require a pro se litigant to comply
with the applicable rules. (Id. at 12.) Finally, common pleas noted that nearly eight
months had passed since the Praecipe to Discontinue was filed before Appellant filed
the Petition, “which raises serious questions if she had presented her claims of her
attorney’s lack of settlement authority within [a] ‘reasonable time.’” (Id.)




       3
         Rule 208.4 of the Pennsylvania Rules of Civil Procedure governs motions practice. The
provision cited by common pleas provides:

       (a)    At the initial consideration of a motion, the court may enter an order that
       ...
              (2) sets forth the procedures the court will use for deciding the motion which
       may include one or more of the following:
       ...
                       (v) the holding of an evidentiary hearing[.]

Pa.R.C.P. No. 208.4(a)(2)(v).


                                                8
       “In sum,” common pleas concluded, “the combination of [Appellant]’s failure
to adhere to the applicable rules of procedure and develop a factual background for
striking the [dis]continuance, the length of time elapsed since the Praecipe to
Discontinue, and the attendant presumptive loss of jurisdiction all factored into”
common pleas’ decision to grant the Motion to Strike and dismiss Appellant’s
Petition to Enforce with prejudice. (Id.)


II.    PARTIES’ ARGUMENTS
       On appeal to this Court,4 Appellant reasserts the same issues she raised in her
Concise Statement: (1) whether common pleas erred in not holding an evidentiary
hearing to determine if Appellant’s former counsel had the authority to settle with
Township on Appellant’s behalf; (2) whether common pleas erred by striking the
Petition to Enforce if it was without jurisdiction; and (3) whether common pleas
abused its discretion by dismissing the Petition to Enforce with prejudice.
       Appellant argues as follows. When the question of an attorney’s authority to
settle a matter is raised, a court must hold an evidentiary hearing whether a party
expressly requests one or not. Common pleas could not rely on the Praecipe to
Discontinue because its validity was what Appellant was challenging. Assuming
common pleas was correct that it lost jurisdiction over the matter once 30 days
passed from entry of the Praecipe to Discontinue, it was also without jurisdiction to
act on Township’s Motion to Strike and to strike Appellant’s Petition to Enforce.
As a result, common pleas’ Order was a nullity. Appellant acknowledges that the


       4
        Our review is limited to determining whether common pleas abused its discretion or
committed an error of law. Thanhauser v. Douglass Township, 190 A.3d 786, 791 n.5 (Pa.
Cmwlth. 2018) (citing Fraternal Order of Police, White Rose Lodge No. 15 v. City of York, 708
A.2d 855, 857 (Pa. Cmwlth. 1998)).


                                             9
proper manner to seek enforcement of a final determination by the OOR against a
local agency is to institute an action in mandamus. Thus, her Petition to Enforce
was also a nullity. However, instead of treating it as a nullity, common pleas
concluded “it was without jurisdiction to rule on it due to the filing of the Praecipe
to Discontinue, which, sub silentio, affirmed the underlying settlement without an
evidentiary hearing, all of which was an abuse of discretion and in violation of
binding case law.” (Appellant’s Brief (Br.) at 16.) Appellant asserts:

      The purpose of the Petition to Enforce was to compel [] Township to
      produce the records requested in the form ordered by the OOR.
      Encompassed within the Petition to Enforce is [a] challenge to the
      validity of the settlement agreement underlying the Praecipe to
      Discontinue. The Praecipe to Discontinue and the settlement are
      inextricably intertwined and one cannot exist independent of the other.
      Absent a valid settlement, Township did not have the authority to forfeit
      [Appellant]’s legal right to the Billing Invoices as per the OOR.

(Id.) Accordingly, Appellant asks the Court to vacate common pleas’ Order and
remand the matter with instructions for common pleas to hold an evidentiary hearing
relative to the validity of the alleged underlying settlement.
      Township argues as follows. Common pleas correctly determined it lacked
jurisdiction to act on Appellant’s Petition to Enforce once 30 days passed after entry
of the Praecipe to Discontinue. Assuming common pleas did have jurisdiction, it
still did not err in dismissing the Petition to Enforce because it should have been
treated as an action in mandamus, which is subject to a six-month statute of
limitations. Because Appellant filed her Petition to Enforce one year after the Final
Determination and nearly eight months after the Praecipe to Discontinue was filed,
it was time barred. Finally, if we construe Appellant’s initial filing with this Court
as an attempt to appeal nunc pro tunc the entry of the Praecipe to Discontinue, and



                                          10
not common pleas’ Order, Township argues Appellant has not satisfied the standard
for nunc pro tunc relief. Appellant admits she was aware of the entry of the Praecipe
to Discontinue as early as July 5, 2018, but provides no explanation for her delay in
filing her appeal. Township asks the Court to affirm common pleas’ Order.
      In her Reply Brief, Appellant responds that the filing of the Praecipe to
Discontinue tolled any statute of limitations.       Appellant questions whether a
voluntary discontinuance constitutes a final adjudication that would trigger the 30-
day period under Section 5505 of the Judicial Code. Appellant also disputes
Township’s contention that “[a] request to strike the discontinuance is . . . subject to
any 30-day jurisdiction limitation.” (Appellant’s Reply Br. at 2.) Appellant claims
“‘Rule 229(c) does not establish a time period within which a motion to strike a
discontinuance must be filed.’” (Id. at 2-3 (quoting Nastasiak v. Scoville Enters.,
Ltd., 618 A.2d 471, 472-73 (Pa. Super. 1993)).) Appellant asserts Township cannot
establish it will suffer prejudice if the Praecipe to Discontinue is stricken because it
“will be placed back in its pre-discontinuation status, i.e., its Petition for Review
pending before [common pleas].” (Id. at 3.) The fact that Township may have to
proceed with its appeal, according to Appellant, is insufficient to establish prejudice;
instead, Township must show it is prejudiced in its ability to present or prove its
case. Appellant also argues that “[w]hether [Appellant] should have moved to strike
the discontinuance or have filed an appeal at an earlier time are questions for
[common pleas]” and require an evidentiary hearing. (Id. at 4.) Because the factual
record has not been sufficiently developed, Appellant asks that the Court vacate
common pleas’ Order and remand the matter for such a hearing.




                                          11
III.   DISCUSSION
       Rule 229(a) provides “[a] discontinuance shall be the exclusive method of
voluntary termination of an action, in whole or in part, by the plaintiff before
commencement of the trial.” Pa.R.C.P. No. 229(a). A discontinuance “terminate[s]
the action without an adjudication on the merits and [] place[s] the plaintiff in the
same position as if the action had never been instituted.” Kalmeyer v. Municipality
of Penn Hills, 197 A.3d 1275, 1279 (Pa. Cmwlth. 2018) (quotation omitted). A
“settlement and discontinuance ha[ve] the same effect as the entry of a judgment for
the defendant in the proceedings. As between the parties to the action, it is
conclusive as to the cause of action asserted therein.” Sustrik, 197 A.2d at 46.
Generally, “where an action is discontinued, there is no longer any proceeding in
which the trial court may exercise jurisdiction.” Kalmeyer, 197 A.3d at 1279.
Because there is no pending action or live controversy, “[i]t is self-evident that . . .
there is no matter over which a court can or may exert jurisdiction.” Id. (quoting
Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474, 476 (Pa. Super.
2014)). Because a praecipe to discontinue serves as a final order, under Section 5505
of the Judicial Code, a court loses jurisdiction to modify or rescind that order after
30 days of its entry. 42 Pa.C.S. § 5505.
       Here, Township filed its Praecipe to Discontinue on June 25, 2018. Therefore,
common pleas was divested of jurisdiction on July 25, 2018. Appellant filed the
Petition to Enforce on February 21, 2019, which was well outside the 30-day period.
As a result, common pleas concluded it lacked the ability to entertain Appellant’s
Petition to Enforce.    However, the case upon which common pleas relied is
distinguishable from the facts here. Freidenbloom involved a petition for attorney’s




                                           12
fees filed more than 30 days after the action was discontinued.5 It did not include
allegations that the case was discontinued based upon a settlement that one of the
parties claimed was entered into without authority.
       Common pleas recognized, “as with many rules,” exceptions to the 30-day
final order rule apply. (Common Pleas’ 1925(a) Op. at 8.) Those exceptions include
allegations that the discontinuance was the result of fraud, mistake, or imposition.
In Re: Condemnation by the Commonwealth of Pennsylvania, Dep’t of Transp., 137
A.3d 666, 673 (Pa. Cmwlth. 2016). We have also recognized an exception when
“some other circumstance occurs that is ‘so grave or compelling as to constitute
extraordinary cause justifying intervention by the court,’ allowing a court to open or
vacate its order after the 30-day period expired.” Pendle Hill v. Zoning Hearing Bd.
of Nether Providence Twp., 134 A.3d 1187, 1193 (Pa. Cmwlth. 2016) (quoting
Ainsworth v. Dep’t of Transp., Bureau of Driver Licensing, 807 A.2d 933, 937 (Pa.
Cmwlth. 2002)).
       In Hopewell v. Hendrie, 562 A.2d 899 (Pa. Super. 1989),6 the Superior Court
faced a situation similar to the one here where a discontinuance was allegedly filed
without a party’s knowledge. There, one of the plaintiff’s attorneys of record
mistakenly filed a discontinuance of a wrongful death and survival action without
the knowledge of either the plaintiff or the other attorney who was actually litigating
the case. The mistake went unnoticed for 10 months and was not discovered until
the matter was listed for trial, at which time defense counsel contacted the plaintiff’s

       5
          Freidenbloom was overruled in Miller Electric to the extent it contradicted the Supreme
Court’s holding in that case that a motion for attorney’s fees filed under Section 2503(3) of the
Judicial Code, 42 Pa.C.S. § 2503(3), “is not a separate suit for fees, but rather, a matter that is
connected but ancillary to the underlying action.” Miller Elec., 907 A.2d at 1057.
        6
          While not binding, Superior Court decisions “offer persuasive precedent where they
address analogous issues.” Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa.
Cmwlth. 2018).


                                               13
counsel and advised the matter was discontinued. Upon discovery, the plaintiff’s
counsel filed a petition seeking to strike the discontinuance, which the trial court
denied. The trial court cited delay in filing the petition to strike and prejudice for its
denial of relief. On appeal, the Superior Court concluded the trial court abused its
discretion and reversed. Id. at 900. In doing so, it noted that upon discovery, the
plaintiff immediately sought to remedy the mistake. Id. at 901. It further found that
while the defendants would be “prejudiced in the sense that they will have to defend
the action,” the defendants did not suffer any prejudice in their ability to defend the
case. Id. On the other hand, because the statute of limitations had already run, the
plaintiff would be prejudiced by not being able to bring a new action. Id. Balancing
the interests involved, the Superior Court held the discontinuance should be struck
and the action reinstated. Id. at 901-02.
      Similarly, in Nastasiak, the Superior Court held the trial court abused its
discretion in refusing to strike off a discontinuance entered by the party’s former
counsel without the party’s consent or knowledge. In that case, an action brought
by minority shareholders against a corporation was discontinued in June 1990 by
their former counsel. In March 1991, new counsel discovered the discontinuance,
and, in September 1991, filed a petition to strike the discontinuance. Citing the delay
between discovery of the discontinuance and the filing of the petition to strike, the
trial court denied the petition.     Nastasiak, 618 A.2d at 472.         The trial court
acknowledged the Superior Court’s holding in Hopewell, but found it inapplicable
because of the shareholders’ delay. Id. at 473. The Superior Court, however, stated
that “it [wa]s inherent in the Hopewell decision that delay alone will not bar relief
unless an adverse party has been prejudiced by such delay.” Id. Concluding there
was no prejudice outside of being required to defend the action, which was not the



                                            14
type of prejudice to be considered, the Superior Court reversed the trial court’s order,
struck the unauthorized discontinuance, and remanded the matter for further
proceedings. Id. at 474.
       Here, common pleas acknowledged that Appellant’s allegations that her prior
counsel did not have express authority to enter into the settlement agreement “would
likely fall within the judicially carved exception to Section 5505 and Pa.[]R.C.P. No.
229(c).”      (Common Pleas’ 1925(a) Op. at 11.)                      Common pleas likewise
acknowledged this Court’s precedent requiring a hearing when a party claims its
counsel lacked authority to settle.            (Id. (citing Brannam, 906 A.2d at 641).7)
Common pleas reasoned that Appellant never requested a hearing and a court cannot
sua sponte schedule one, citing Rule 208.4(a)(2)(v) of the Pennsylvania Rules of
Civil Procedure.          (Common Pleas’ 1925(a) Op. at 11.)                      However, Rule
208.4(a)(2)(v) provides that “[a]t the initial consideration of a motion, the court may
enter an order that . . . sets forth the procedures the court will use for deciding the
motion which may include . . . the holding of an evidentiary hearing[.]” Pa.R.C.P.
No. 208.4(a)(2)(v). It is silent as to whether a party must request one. On the other
hand, Rule 208.4(b)(1) expressly permits a court to sua sponte schedule a hearing.
It provides that “[i]f the moving party seeks relief based on disputed facts for which
a record must be developed, the court, upon its own motion or the request of any
party including the moving party, may enter an order in the form . . . of a rule to


       7
          In Brannam, counsel for the parties negotiated an oral settlement, but when the terms
were conveyed to the clients, the plaintiffs indicated that they did not agree to the settlement terms.
Plaintiffs’ counsel informed the trial court of their disagreement, but the trial court nonetheless
entered an order of settlement based upon the purported oral settlement and denied the plaintiffs’
subsequent motion to strike the order of settlement and motion for reconsideration. On appeal, we
held “the existence of a settlement agreement requires an evidentiary hearing whenever one party
disputes the existence of an agreement or its binding effect.” Brannam, 906 A.2d at 639.


                                                 15
show cause,” which may include scheduling a hearing. Pa.R.C.P. No. 208.4(b)(1)
(emphasis added).
      In her Petition to Enforce, Appellant avers as follows:

      18. [Appellant] . . . retained Attorney Terry Mutchler to represent [her]
      in the pending Petition for Judicial Review filed by [Township]. . . .

      19. On June 21, 2019[,] just four days before the scheduled Status
      Conference in [common pleas, Township] released a second version of
      the redacted invoices to Attorney Mutchler. The invoices included the
      58 redactions as permitted by the OOR, but also included an additional
      128 redactions above and beyond what the OOR had allowed. . . .

      20. [Appellant] . . . did not accept the newly redacted version of the
      Solicitor’s invoices and affirmed with Attorney Mutchler only the
      OOR’s [Final D]etermination allowing 58 redactions would be
      acceptable.

      21. On June 25, 2018, [Township’s counsel] filed a Praecipe to
      Discontinue with [common pleas]” and “[a]t no time did [Appellant]
      . . . agree to a discontinuance.”

(Petition to Enforce ¶¶ 18-21.)
      In its Motion to Strike, Township stated that “counsel for the Township and
Attorney Mutchler reached an agreement to provide redacted copies of the invoices
which were satisfactory to [Appellant] . . . , but which also maintained the
Township’s privilege in said invoices.” (Motion to Strike ¶ 10.) Township stated
that Appellant, through her counsel, had accepted the settlement agreement
regarding the invoices. (Id. ¶ 17.)
      It is apparent from the facts as averred by Appellant and Township that a
factual dispute exists. Thus, an evidentiary hearing to resolve the dispute should
have been scheduled.




                                         16
      That said, we can understand common pleas’ reasoning. Appellant filed what
was titled a “Petition to Enforce Final Determination of the [OOR].” (Reproduced
Record at 38a.) She did not file a “Motion to Strike the Praecipe to Discontinue.”
However, her averments in the Petition to Enforce support that the basis for her
seeking relief is the validity of the discontinuance. We agree with Appellant that:

      [t]he purpose of the Petition to Enforce was to compel [] Township to
      produce the records requested in the form ordered by the OOR.
      Encompassed within the Petition to Enforce [wa]s [a] challenge to
      the validity of the settlement agreement underlying the Praecipe to
      Discontinue. The Praecipe to Discontinue and the settlement are
      inextricably intertwined and one cannot exist independent of the
      other. Absent a valid settlement, Township did not have the authority
      to forfeit [Appellant]’s legal right to the Billing Invoices as per the
      OOR.

(Appellant’s Br. at 16 (emphasis added).) However as styled, the “Petition to
Enforce Final Determination of the [OOR]” was not a motion to strike the
discontinuance pursuant to Rule 229(c) of the Pennsylvania Rules of Civil
Procedure.
      In its Rule 1925(a) Opinion, common pleas stated that a motion to strike a
discontinuance must comply with state and local rules governing civil procedure and
Appellant’s pleading did not. Common pleas noted Appellant “failed to plainly and
adequately develop the material facts (e.g.[,] the existence of fraud, mistake,
imposition, or other extraordinary cause) underlying her requested relief aside from
a cursory mention of her attorney’s lack of settlement authority. . . .” (Common
Pleas’ 1925(a) Op. at 11-12.)      We cannot disagree with common pleas that
Appellant’s allegations related to her former counsel’s lack of authority are not well
developed. However, to the extent common pleas found Appellant’s pleading did
not conform to the governing rules of civil procedure, the remedy would not be an


                                         17
outright dismissal of her petition with prejudice. Rather, the Petition to Enforce
should have been dismissed without prejudice, so that Appellant could have refiled
a pleading that did conform to the applicable rules. See Tomb v. Matlack, Inc., 447
A.2d 1122, 1123 (Pa. Cmwlth. 1982) (reversing a trial court order dismissing the
appellant’s petition to strike off a discontinuance because notice was not given
pursuant to Rule 229(c) and allowing the appellant to refile a petition that did comply
with the rule).
      However, before deciding whether to allow Appellant to file another motion
that does conform to the Rules, we must consider whether it would be futile for
Appellant to do so because her delay in filing the initial Petition to Enforce once she
discovered the Praecipe to Discontinue resulted in prejudice to Township. Common
pleas provided this as another reason for dismissing Appellant’s Petition to Enforce
with prejudice. We agree with Appellant that, similar to whether former counsel had
express authority to settle this matter on Appellant’s behalf, “[w]hether [Appellant]
should have moved to strike the discontinuance or have filed an appeal at an earlier
time are questions for [common pleas]” and require an evidentiary hearing.
(Appellant’s Reply Br. at 4.) Those are factual issues, along with what, if any,
prejudice Township may suffer if the discontinuance is stricken and Township’s
Petition for Judicial Review of the OOR Final Determination is reinstated, that
common pleas can only consider following an evidentiary hearing.


IV.   CONCLUSION
      Based on the aforementioned facts and analysis, we affirm the Order of
common pleas to the extent it granted the Motion to Strike, but reverse its Order to
the extent it struck the Petition to Enforce with prejudice. Consistent with Tomb,



                                          18
Appellant is permitted to file another motion with common pleas seeking to strike
the discontinuance that Appellant alleges was entered without her authority that does
conform to the applicable rules within 30 days. Thereafter, common pleas should
schedule an evidentiary hearing to determine whether extraordinary cause exists that
would permit common pleas to act, even if more than 30 days had elapsed since the
Praecipe to Discontinue was filed. At the hearing, the parties can present evidence
as to the purported settlement, Appellant’s alleged delay in seeking to strike the
discontinuance, and Township’s alleged prejudice in pursuing its claim if the
underlying matter is reinstated.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         19
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wilmington Township                       :
                                          :
                   v.                     :   No. 457 C.D. 2019
                                          :
Carrie Hahn,                              :
                          Appellant       :

                                      ORDER


      NOW, March 2, 2020, the Order of the Court of Common Pleas of Lawrence
County, entered in the above-captioned matter, is AFFIRMED IN PART and
REVERSED IN PART. The Order is affirmed to the extent it granted the Motion
to Strike filed by Wilmington Township, but is reversed to the extent it struck the
Petition to Enforce filed by Carrie Hahn (Appellant) with prejudice. This matter is
remanded, and upon remand, Appellant shall be permitted to file a new motion
seeking to strike the discontinuance that she alleges was filed without her authority.
The new motion should comply with any applicable rules and shall be filed within
30 days of the date of this order. Upon filing of the new motion, common pleas
should hold an evidentiary hearing to resolve any factual disputes raised therein.
      Jurisdiction relinquished.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
