          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Zachary Spada,                         :
                                       :
                           Appellant   :
                                       :
             v.                        :   No. 1048 C.D. 2015
                                       :
Donald Farabaugh and J.A.              :   Submitted: August 14, 2015
Farabaugh, individually                :
and in their official capacities       :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                            FILED: November 3, 2015

      Zachary Spada, pro se, appeals from the August 13, 2014 Order of the Court
of Common Pleas of Clearfield County (trial court) that denied Spada’s Motion for
Leave to Appeal Nunc Pro Tunc (Motion) an order of the trial court filed January
15, 2014. On appeal, Spada argues that the trial court abused its discretion in
denying the Motion because he acted in good faith and without negligence by
relying on certain Pennsylvania Rules of Civil Procedure and, therefore, he is
entitled to file an appeal nunc pro tunc. Discerning no abuse of discretion, we
affirm.
       Spada, an inmate at the State Correctional Institution at Houtzdale (SCI-
Houtzdale), filed a civil action complaint (Complaint), dated December 16, 2013,
against Donald Farabaugh and J.A. Farabaugh (together, Defendants) in their
individual and official capacities as correctional officers at SCI-Houtzdale.1 He
also filed an application to proceed in forma pauperis.                      After reviewing the
Complaint, the trial court sua sponte dismissed the Complaint with prejudice
pursuant to Pennsylvania Rule of Civil Procedure 240(j)(1).2 In its opinion, the
trial court concluded that the Complaint was frivolous because it lacked an
arguable basis in either law or fact, noting, inter alia, that Spada “failed to set forth
the elements of his claims or even the basic facts in support thereof.” (Trial Ct.
Opinion and Order, January 15, 2014,3 at 1-2.)




       1
         The Complaint averred, inter alia, that Defendants slandered him, thereby violating his
rights under the Eighth and Fourteenth Amendments to the United States Constitution, Articles 5
and 12 of the Universal Declaration of Human Rights, and Section 2709 of the Pennsylvania
Crimes Code, 18 Pa. C.S. § 2709 (harassment), causing him irreparable harm. (Compl. ¶¶ 5-7,
12-14.)

       2
           Pa. R.C.P. No. 240(j)(1). This rule provides, in relevant part:

               If, simultaneous with the commencement of an action or proceeding or the
       taking of an appeal, a party has filed a petition for leave to proceed in forma
       pauperis, the court prior to acting upon the petition may dismiss the action,
       proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that
       the action, proceeding or appeal is frivolous.
Id.

       3
          The Complaint was dated December 16, 2013 and docketed on January 15, 2014. The
trial court’s opinion and order dismissing the Complaint with prejudice was dated January 13,
2014 and also docketed on January 15, 2014.

                                                   2
      Spada filed a “Motion for Reconsideration of Judgment and for Leave to
Amend Complaint” (Motion for Reconsideration), dated January 17, 2014, which
was docketed on January 29, 2014. On or about April 21, 2014, Spada filed a
Motion to Compel Judgment on his Motion for Reconsideration.                    The
Prothonotary/Clerk of Courts sent Spada a correspondence, dated May 29, 2014,
indicating that the trial court had not ruled on the Motion for Reconsideration and
it was returning Spada’s appeal documents relating to the Motion for
Reconsideration. (Letter from Prothonotary/Clerk of Courts to Spada (May 29,
2014).) Subsequently, the Court Administrator sent Spada a letter dated July 29,
2014 indicating that the trial court had received a letter from Spada dated June 19,
2014 regarding the Motion for Reconsideration, and stating that no order or ruling
on the Motion for Reconsideration had been made “as the time for filing an appeal
expired some time ago,” “[t]he case is concluded and the Court’s dismissal is
final,” and, “[a]s such, [the] Motion for Reconsideration is moot.” (Letter from
Court Administrator to Spada (July 29, 2014).)


      Spada filed the instant Motion on or about August 1, 2014, seeking leave to
appeal the trial court’s January 15, 2014 order nunc pro tunc. Therein, Spada
asserted that he was entitled to nunc pro tunc relief because: he had filed the
Motion for Reconsideration, which had not yet been ruled upon; he received
correspondence from court officials on July 29, 2014 indicating that the Motion for
Reconsideration was moot; and he “was previously unaware his Motion [for
Reconsideration] had been denied.” (Motion.)




                                         3
        The trial court denied the Motion by Opinion and Order filed August 13,
2014. In its Opinion, the trial court noted that granting nunc pro tunc relief is
warranted where there is evidence of fraud, a breakdown in the court’s operations,
or non-negligent circumstances resulting in the untimely appeal.                             (Trial Ct.
Opinion and Order, August 13, 2014, at 1.) According to the trial court, nunc pro
tunc relief is not meant “‘to provide relief to parties whose counsel has not
followed proper procedure in preserving appellate rights.’” (Trial Ct. Opinion and
Order, August 13, 2014, at 2 (quoting Lenhart v. Cigna Companies, 824 A.2d
1193, 1198 (Pa. Super. 2003)).) The trial court concluded that Spada did not file
his appeal within the required time limits and did not set forth facts in the Motion
that demonstrated a legitimate basis for nunc pro tunc relief. (Trial Ct. Opinion
and Order, August 13, 2014, at 2.) Spada now appeals.4

        4
          Spada initially appealed to the Superior Court, which transferred the matter to this
Court. Section 762(a)(1)(i) of the Judicial Code provides that this Court has “exclusive
jurisdiction of appeals from final orders of the courts of common pleas in . . . Commonwealth
civil cases . . . [in which o]riginal jurisdiction . . . is vested in another tribunal by virtue of any of
the exceptions to section 761(a)(1) (relating to original jurisdiction).” 42 Pa. C.S. § 762(a)(1)(i).

        We note that Spada seeks to appeal nunc pro tunc the trial court’s January 15, 2014 order
to this Court via the Motion he filed with the trial court. In these situations, “[b]oth the trial
court and our Court have jurisdiction to decide” whether a nunc pro tunc appeal is permitted,
“and a petition to appeal nunc pro tunc may be directed to either the lower court or the appellate
court.” Weiman by Trahey v. Philadelphia, 564 A.2d 557, 559 (Pa. Cmwlth. 1989); see also
Towey v. Lebow, 980 A.2d 142, 144 (Pa. Super. 2009) (same); G. Darlington, K. McKeon, D.
Schuckers & K. Brown, Pennsylvania Appellate Practice § 903:3 (West 2014) (stating “[b]oth
the trial courts and the appellate courts have jurisdiction to determine whether an appeal nunc
pro tunc should be permitted”).

        Appellate review of a trial court’s “denial of an appeal nunc pro tunc is whether the trial
court abused its discretion.” Union Electric Corporation v. Board of Property Assessment,
Appeals & Review of Allegheny County, 746 A.2d 581, 583 (Pa. 2000). “An abuse of discretion
has been defined . . . as not merely an error of judgment,” but involves a situation “where the law
is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result
                                                                                       (Continued…)
                                                    4
       On appeal, Spada argues that the trial court abused its discretion in not
allowing him to appeal nunc pro tunc because he “repeatedly and diligently
attempted to ascertain the status of the ruling of his Motion for Reconsideration.”
(Spada’s Br. at 4.) Citing Pennsylvania Rule of Civil Procedure 227.1, Spada
contends that his Motion for Reconsideration was not moot because a clear-cut
statutory right to file a post-verdict motion exists. Spada asserts that he acted in
good faith and without negligence when no praecipe for judgment on the Motion
for Reconsideration was filed pursuant to Pennsylvania Rule of Civil Procedure
227.4, and he did not receive notice that his “Post-Verdict Motion,” i.e., the
Motion for Reconsideration, had been denied as moot. (Spada’s Br. at 4.)


       Defendants respond that the January 15, 2014 order was a final order
dismissing the Complaint with prejudice pursuant to Pennsylvania Rule of Civil
Procedure 240(j) and, as such, Spada had to file an appeal from that order within
thirty days. Spada did not file a timely appeal, but instead filed a Motion for
Reconsideration, which does not toll the time for filing an appeal. Defendants
contend that Spada has not shown that his untimely appeal is the result of
extraordinary circumstances or the fault of the trial court, but is the result of
Spada’s misunderstanding of the Rules of Civil Procedure and, therefore, he is not
entitled to nunc pro tunc relief.


       “Allowance of an appeal nunc pro tunc lies at the sound discretion of the
trial court.” Baker v. City of Philadelphia, 603 A.2d 686, 689 (Pa. Cmwlth. 1992)


of partiality, prejudice, bias or ill will, as shown by the evidence or the record.” Id. (internal
quotation marks omitted).

                                                5
(emphasis omitted). As a general matter, a trial court 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 operation through a default of its
officers.” Cook v. Unemployment Compensation Board of Review, 671 A.2d
1130, 1131 (Pa. 1996) (internal quotation marks omitted). Our Supreme Court has
further explained that

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

Id. “The exception for allowance of an appeal nunc pro tunc in non-negligent
circumstances is meant to apply only in unique and compelling cases in which the
appellant has clearly established that [he] attempted to file an appeal, but
unforeseeable and unavoidable events precluded h[im] from actually doing so.”
Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001).


      There is no question that the trial court’s January 15, 2014 order disposed of
the Complaint in its entirety with prejudice and, as such, constituted a final order.
See Pennsylvania Rule of Appellate Procedure 341(b)(1), Pa. R.A.P. 341(b)(1)
(defining a final order, in pertinent part, as one that “disposes of all claims and of
all parties”). Therefore, pursuant to Pennsylvania Rule of Appellate Procedure
903(a), Pa. R.A.P. 903(a), Spada had to file his notice of appeal within 30 days
after the January 15, 2014 order. However, Spada did not file his Motion until
August 1, 2014, almost six months after the appeal period had expired.


                                          6
      Spada filed a Motion for Reconsideration, which he was permitted to do
under the rules at any time during the thirty day time period that a trial court
retains jurisdiction following the issuance of a final order. Fulton v. Bedford
County Tax Claim Bureau, 942 A.2d 240, 242 n.3 (Pa. Cmwlth. 2008). However,
if a trial court does not issue an order expressly granting reconsideration within
thirty days of the final order, it loses the power to act upon the motion for
reconsideration and its original order becomes final. Lichtman v. Glazer, 111 A.3d
1225, 1229-30 (Pa. Cmwlth. 2015). A trial court has no obligation to act on a
motion for reconsideration and its inaction “has the effect of a denial.” Id. at 1230
(citing Pennsylvania Rule of Appellate Procedure 1701(b)(3)(ii) and Note, Pa.
R.A.P. 1701(b)(3)(ii) and Note). The trial court chose not to act on Spada’s
Motion for Reconsideration, dated January 17, 2014 and docketed January 29,
2014, and lost jurisdiction to do so on February 14, 2014. As noted by the Court
Administrator’s July 29, 2014 letter, when the appeal period expired, the Motion
for Reconsideration became moot; this is because the trial court no longer had
jurisdiction to reconsider the January 15, 2014 order and the dismissal of the
Complaint was final. Moreover, Spada’s filing of the Motion for Reconsideration
did not stop the thirty day appeal period from running, and he had to file his appeal
within that thirty day period.


      Spada relies on Civil Rules 227.1 and 227.4 to argue, essentially, that his
appeal should have been accepted nunc pro tunc because he filed the Motion for
Reconsideration as a “Post-Verdict Motion” and, despite his efforts, he did not
know the trial court had dismissed the Motion for Reconsideration as being moot
until July 29, 2014. (Spada’s Br. at 4.) However, because the January 15, 2014


                                         7
order dismissed the Complaint without a trial or other evidentiary proceeding that
would constitute a trial, these civil rules requiring the filing of post-trial motions
do not apply. See Pa. R.C.P. No. 227.1(b)(2), (c) (entitled “Post-Trial Relief” and
requiring motions to be filed within ten days of the “verdict . . . in the case of a
jury trial” or “the decision in the case of a trial without jury” (emphasis added));
Pa. R.C.P. No. 227.1(c), Note (stating that “[a] motion for post-trial relief may not
be filed to orders disposing of preliminary objections, motions for judgment on the
pleadings or for summary judgment, . . . or other proceedings which do not
constitute a trial” (emphasis added)). The trial court reviewed the Complaint,
concluded that the Complaint was frivolous5 and had no merit as a matter of law,
and dismissed the Complaint with prejudice as permitted by Pennsylvania Rule of
Civil Procedure 240(j). Because there was no trial or trial equivalent, Spada was
neither required to file, nor did he file, a post-trial motion; therefore, Spada’s
assertion that nunc pro tunc relief is warranted because he did not know that the
trial court did not rule on his “Post-Verdict Motion” is not correct.


        We are also unpersuaded by Spada’s reliance on Civil Rule 227.4(b), which
authorizes, in relevant part, a “prothonotary to enter judgment upon praecipe of a
party . . . upon a nonsuit by the court, the verdict of a jury or the decision of a
judge following a trial without jury, if . . . [a] timely post-trial motion is filed” and

        5
           An action is “frivolous” for the purposes of Rule 240(j) if it “‘lacks an arguable basis
either in law or in fact.’” Bailey v. Wakefield, 933 A.2d 1081, 1083 (Pa. Cmwlth. 2007)
(quoting Pa. R.C.P. No. 240, Note). “An action is frivolous under this provision, if, on its face, it
does not set forth a valid cause of action.” Id. at 1083-84. Section 6602(e)(2) of the Prison
Litigation Reform Act likewise indicates that a trial court should “dismiss prison conditions
litigation at any time . . . if the court determines,” inter alia, that the litigation “is frivolous or . . .
fails to state a claim upon which relief may be granted.” 42 Pa. C.S. § 6602(e)(2).

                                                     8
the trial court does not issue an order within 120 days after the filing of the motion.
Pa. R.C.P. No. 227.4(b). As stated previously, there was no trial in this matter and,
therefore, there was no verdict or decision from which post-trial motions could be
filed to begin the running of the 120-day period set forth in Civil Rule 227.4(b).
The fact that Spada filed the Motion for Reconsideration before the appeal period
expired, which the trial court chose not to rule upon, does not render Civil Rule
227.4(b) applicable.


       After reviewing Spada’s assertions, we conclude, as the trial court did, that
the circumstances here do not warrant the extraordinary relief of a nunc pro tunc
appeal.6    Spada’s untimely appeal is the result of his not understanding the
procedure required to preserve his appellate rights. “The grant of nunc pro tunc
relief is not designed to provide relief to parties who[] . . . [have] not followed
proper procedure in preserving [their] appellate rights.” Lenhart, 824 A.2d at
1197-98.     Although Spada blames the trial court and court officials for not
responding to the Motion for Reconsideration or giving him notice that it had been
denied, the trial court was under no obligation to rule on the Motion for
Reconsideration, did not do so, and lost jurisdiction to do so thirty days after the
January 15, 2014 order. Spada apparently did not understand that the filing of a
Motion for Reconsideration does not stop the appeal period from running. This is
not a situation where “the appellant has clearly established that [he] attempted to

       6
           Although the trial court initially referred to Spada’s request as one to file post-trial
motions nunc pro tunc, the Motion requests the right to file an appeal from the trial court’s
January 15, 2014 order nunc pro tunc. (Trial Ct. Opinion and Order, August 13, 2014, at 1.)
However, the trial court applied the correct standard for nunc pro tunc relief and ultimately
concluded that the circumstances did not warrant granting Spada’s Motion, which requested
relief to appeal nunc pro tunc. (Trial Ct. Opinion and Order, August 13, 2014, at 1-2.)

                                                9
file an appeal, but unforeseeable and unavoidable events precluded h[im] from
actually doing so.” Criss, 781 A.2d at 1160.


      Accordingly, we affirm the trial court’s Order denying Spada’s Motion.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                        10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Zachary Spada,                           :
                                         :
                           Appellant     :
                                         :
             v.                          :   No. 1048 C.D. 2015
                                         :
Donald Farabaugh and J.A.                :
Farabaugh, individually                  :
and in their official capacities         :



                                       ORDER


      NOW, November 3, 2015, the Order of the Court of Common Pleas of
Clearfield County, entered in the above-captioned matter, is hereby AFFIRMED.



                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge
