J-S63023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JULIAN SMITH                                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

HUIJUN YAN

                         Appellee                    No. 998 EDA 2015


               Appeal from the Order Entered March 17, 2015
            In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): January Term, 2015 No. 3545


BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                       FILED NOVEMBER 06, 2015

      Appellant, Julian Smith, appeals from the trial court’s March 17, 2015

order denying Appellant’s petition to appeal nunc pro tunc from the January

31, 2014 judgment of default entered in the Philadelphia Municipal Court.

After careful review, we affirm on the basis of the trial court’s well-reasoned

and comprehensive opinion.

      This case arose as a result of an automobile accident that occurred on

March 31, 2013, between Appellant and Appellee, Huijun Yan (Yan). Lower

Merion Police Officer Jeffrey Calabrese investigated the accident, and issued

a report in which he opined that “this crash was caused by [Appellant]

entering his vehicle into a roadway without yielding the right of way to a

vehicle already in the roadway.”      Commonwealth of Pennsylvania Police
J-S63023-15



Crash Reporting Form, 3/31/13. Officer Calabrese issued a traffic citation to

Appellant for vehicles entering a roadway. Id.

       Less than two weeks later, on June 12, 2013, Yan filed a Statement of

Claim with the Philadelphia Municipal Court, which listed Appellant’s address

as 5100 Lebanon Avenue, Apartment A1002, Philadelphia, PA 19131. This

was the same address Appellant provided at the accident scene, and which

Officer Calabrese listed in the accident report. Thereafter, in a succession of

filings, Yan attempted service on Appellant.         See Trial Court Opinion,

5/21/15, at 1-3 (detailing Yan’s attempts at service). On January 31, 2014,

default judgment in favor of Yan and against Appellant was entered in the

amount of $12,182.60. Appellant did not appear during the Municipal Court

proceedings. On January 28, 2015, he filed his petition to appeal nunc pro

tunc from the January 31, 2014 entry of default judgment with the trial

court in the Philadelphia Court of Common Pleas. On March 17, 2015, the

trial court entered its order denying Appellant’s petition to appeal nunc pro

tunc. Appellant filed this timely appeal on April 1, 2015.1

       On appeal, Appellant presents the following issue.

                     Did the Court of Common Pleas of Philadelphia
              County err i[n] refusing to allow Appellant[’]s
              Petition for Allowance of Appeal Nunc Pro Tunc when
              the dockets of the original Municipal Court litigation
              clearly show a “breakdown in the administrative
____________________________________________


1
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-S63023-15


            process”, where Appellant[’]s failure to timely file
            was due to excusable neglect, where Appellant did
            appeal within a short time after becoming aware of
            the Municipal Court judgment, where Appellant had a
            valid defense to the underlying claim and where, as
            a result of the above, Appellant clearly was denied
            his day in Court?

Appellant’s Brief at 2.

      “Allowance of an appeal nunc pro tunc lies at the sound discretion of

the [t]rial [j]udge.”     Nagy v. Best Home Servs., Inc., 829 A.2d 1166,

1167 (Pa. Super. 2003) (citation omitted).      The timeliness of an appeal,

whether it is an appeal to an appellate court or a de novo appeal in common

pleas court, is a jurisdictional question.   Lee v. Guerin, 735 A.2d 1280,

1281 (Pa. Super. 1999) (citation omitted). Where a statute fixes the time

within which an appeal may be taken, the time may not be extended as a

matter of indulgence or grace. Id.

      Here, it is undisputed that the trial court had jurisdiction pursuant to

42 Pa.C.S.A. § 932. Furthermore, Philadelphia Municipal Court Rule of Civil

Procedure 124 provides as follows.

            A party aggrieved by a judgment for money … may
            appeal therefrom within 30 days after the date of the
            entry of the judgment by filing with the prothonotary
            of the Court of Common Pleas a notice of appeal
            together with a copy of the Municipal Court
            disposition sheet. The prothonotary shall not accept
            an appeal from an aggrieved party which is
            presented for filing more than 30 days after the date
            of judgment without leave of the Court of Common
            Pleas and upon good cause shown.

Phila. M.C.R. Civ.P. 124.


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J-S63023-15



      After thoroughly reviewing the record, we conclude that the trial court

did not abuse its discretion in denying Appellant’s petition to appeal nunc pro

tunc. Moreover, the Honorable Nina Wright Padilla, sitting as the trial court,

has authored a cogent opinion, citing both the record and applicable legal

authority, such that further commentary by this Court is not warranted, and

would be redundant. Judge Wright Padilla, inter alia, concluded that “[f]rom

the record, it appears that any failure to serve was due to Appellant’s own

interference.”    Trial Court Opinion, 5/21/15, at 5.    Judge Wright Padilla

additionally observed as follows.

              Appellant cannot claim that he “promptly filed” his
              appeal. Even assuming he did not have notice of the
              municipal court action at the time of its filing, the
              notice from PENNDOT regarding his license
              suspension was sent to him May 7, 2014.            He
              appealed that notice May 29, 2014. The notice
              included the court term and number of the action
              resulting in [default] judgment.      Consequently,
              Appellant was aware of said action at the very least
              as of May 29, 2014, though he did not file a petition
              to appeal nunc pro tunc until January 28, 2015,
              seven (7) months and thirty (30) days later.

Id. at 5-6.

      Based on the foregoing, we find that Judge Wright Padilla has properly

addressed and disposed of Appellant’s issue on appeal in her May 21, 2015

opinion.   We therefore adopt Judge Wright Padilla’s opinion as our own in

affirming the March 17, 2015 order.

      Order affirmed.



                                      -4-
J-S63023-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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           !·



                               IN THE COURT OF COMMON PLEAS
                          FIRST JUDICIAL DISTRICT OF PENNSYLVANIA


                                                                                           :.·.
JULIAN SMITH                                                  SUPERIOR COURTNo.
                                                              998 EDA 2015
                 v.
                                                              Civil Division            .
                                                              January Term 2015, No. 3545
HUUUN YAN                                                                                   '·

                                                                                            c
                                                                                             -,.
                                                OPINION                                      ~::•




       Appeltant, Julian Smith, appeals from this Court's decision denying his petition to appeal nunc

pro tune from judgment entered by the Municipal Court of Philadelphia in favor of Appellee, Huijun

Yan.                                                                                   Smith Vs Yan-OPFLO




                                FACTS AND PROCEDURAL HISTORY                      111111111 IIUI 11111111111111
                                                                                         15010354500013

       The underlying case is the result of a car accident that occurred on March 31, 2013 on Belmont

Avenue in 1the township of Lower Merion. A police report was taken and Appellant gave his address as

5100 Leba~on Avenue A1002, Philadelphia, Pennsylvania, 19131. See Exhibit "A" to this Court's
            .
Opinion.

       On:June 12, 2013, Appellee filed a Statement of Claims in the Philadelphia Municipal Court.

       On/June 27, 2013, Appellee filed an ''Affidavit of Service Not Made" upon Appellant. Said

Affidavit stated that the process server attempted to make service upon Appellant at 5100 Lebanon

Avenue, Apartment Al002 in Philadelphia, Pennsylvania, 19131. A black male approximately forty-five

(45) yearsiold, 5' 10" and approximately one hundred ninety (190) pounds, stated that Appellant was

"unknown'( to him. See Exhibit "B" to this Court's Opinion.

       OnJuly 29, 2013, the case was dismissed without prejudice due to failure to serve. Appellee
           '

appeared at the hearing; Appellant did not. See Exhibit "A" to this Court's Opinion.

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       On\ October 29, 2013, Appellee filed an "Affidavit of Postal Verification" of Appellant's new

address, listed as 1101 S. Divinity Street, Philadelphia, Pennsylvania, 19143. See Exhibit ''C" to this

Court's Opinion.

       On! November 1, 2013, the case was relisted.
          !
       On; November 25, 2013, Appellee filed an "Affidavit of Service Not Made" upon Appellant. The

Affidavit stated that the process server attempted to make service upon Appellant at 1101 S. Divinity

Street, Philadelphia, PA 19143. There were four (4) apartments with mailboxes with different names. A

black female approximately thirty (30) years old, 5' 6", and one hundred fifty (150) pounds stated that

Appellant was unknown to her. See Exhibit "D" to this Court's Opinion.

       oru December 16, 2013, the case was dismissed without prejudice due to failure to serve.
Appellee appeared at the hearing; Appellant did not. See Exhibit "A" to this Court's Opinion.

       OniDecember 17, 2013, Appellee submitted a letter providing Appellant's new address as 3900

Haverford Avenue 302, Philadelphia, Pennsylvania, 19104. That same day, the matter was relisted.
          1




       On.January 6, 2014, Appellee filed an Affidavit of Service upon Appellant. The Affidavit stated

that the process server made service on Joe Walker, an adult in charge of 3900 Haverford Avenue, on
          '

December127, 2013. Joe Walker was described as a black male, approximately fifty-five (55) years old,

5' 10", and one hundred ninety (190) pounds. See Exhibit "F" to this Court's Opinion.

       OnJanuary 31, 2014, judgment was entered by default in favor of Appellee for $12,000.00,

plus $182.pO costs, for a total of $12, 182.60. See Exhibit "A" to this Court's Opinion.

       On February 21, 2014, Appellee filed a Praecipe for Writ of Execution. See Exhibit "A'' to this

Court's Opinion.

       On :April 4, 2014, Appellee filed a Petition to Break and Enter. A hearing was scheduled for April

24, 2014. fee Exhibit "A" to this Court's Opinion.




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            oniApril 17, 2014, Appellee filed an "Affidavit of Service Not Made" upon defendant at 3900

     Haverford jAvenue, Apartment 302. The process server was unable to make service on Appellant on

     April 11, 2914, but swore that he was informed by a "Miss Holland" that Appellant resided in Apartment

     302. Miss ~olland was described as a black female of approximately twenty five (25) years old, 5' 6",

     and one hundred fifty (150) pounds.     See Exhibit "G" to this Court's Opinion.

            oniApril 24, 2014, following a hearing, Appellee's Petition to Break and Enter was withdrawn
                 '
     without prejudce due to lack of service and insufficient proof that Appellant lived at that address. See

     Exhibit "A'! to this Court's Opinion.

            On'May 7, 2014, PENNDOTsuspended Appellant's commercial driver's license.1 The notice

     stated tha~ his driving privilege was being revoked due to a judgment resulting from a motor vehicle
                '
     accident op March 31, 2013 docketed at Court No. 3979, term 2013.

            onpanuary 28, 2015, Appellant commenced the instant case by petition to file an appeal nunc
                 '
     pro tune. He averred that the accident was not his fault and that he had an eyewitness, Desiree

     Holland,   to back up his version of the events. He averred that   service was "never attempted" at the

     5100 Lebanon Avenue address, and that he has never resided at 3900 Haverford Avenue. Appellant

     also averred that the December 11, 2014 hearing for his statutory appeal from his license suspension

     was "the   first time" that the suspension was explained to him and he received copies of the Small
     Claims documentation.

            On :March 17, 2015, this Court denied Appellant's Motion.

            On iApril 1, 2015, Appellant filed a timely Notice of Appeal to the Superior Court.

            OnApril 8, 2015, this Court issued its Order pursuant to Pa.R.A.P. 1925(b), directing Appellant

     to file his ~oncise Statement of Matters Complained of on Appeal within twenty-one (21) days.




     I
      Appellant's statutory appeal from the decision of PENNDOTrevoking his license is docketed at May Term 2014,
,.   No. 3539, and was filed May 29, 2014. See Exhibits ''H" and "I" to this Court's Opinion.
                !
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       on· April 14, 2015, Appellant filed a timely Statement of Matters Complained on Appeal, arguing

that this Court erred as: Appellant has a valid defense to the underlying automobile accident; Appellant

was denied his day in court; Appellant was never served with the small claims complaint; service was

faulty as ~ppellant never lived at the addresses where service was effectuated; that Appellant timely
          I




filed his a~peal; and that this amounted to a ''breakdown in the Court's operation."
          I




                                             DISCUSSION

       Appellant contests this Court's denial of his Petition to Appeal Nunc Pro Tune from a Judgment

in the Municipal Court of Philadelphia.
          !


       This Court has exclusive jurisdiction to hear appeals from final orders of the minor judiciary

established within the judicial district. 42 Pa.C.S. § 932. Pursuant to the Philadelphia Municipal Court
          '
Rules of cjvil Procedure, a party aggrieved by a money judgment may appeal therefrom within thirty

(30) day~ after the date of the entry of the judgment, and the prothonotary may not accept an appeal
          .
more than!thirty (30) days after the date of judgment without leave of the Court of Common Pleas and

upon g~       cause shown. Phila. M.C.R. Civ.P. No. 124.

       W~ere an act of assembly fixes the time within an appeal from minor judiciary must be

perfected, jthe court has no power to extend it; there must be fraud or its equivalent to permit an
          .
appeal nuryc pro tune. W. W. Grainger, Inc. v. W. C Ruth & Son, 192 Pa. Super. 446, 449, 161 A.2d

644, 646 (~960). Mere lack of notice or knowledge of the entry of judgment is not a sufficient reason

to strike said judgment. Id. Allowance of an appeal nunc pro tune is within the sound discretion of the

trial court anc will not be reversed absent an abuse of discretion. See McKeown v. Bailey, 731 A.2d

628, 630 (pa. Super. Ct. 1999); Rothstein v. Potvsdences, Inc; 2004 Pa. Super. 249, 853 A.2d 1072,
          I


1075 (Pa. ?uper. Ct. 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


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     the result bf partiality, prejudice, bias or ill will as shown by the evidence or the record."   Fischer v.

     UPMC Nw./ 2011 Pa. Super. 247, 34 A.3d 115, 120 (Pa. Super. Ct. 2011).

            Where a party requests permission to file an appeal nunc pro tune it is because counsel for the

     appealing partv has not timely filed an appeal. Amicone v. Rok, 2003 Pa. Super. 500, 839 A.2d 1109,

     113 (Pa. Super. Ct. 2003) (where prothonotary's failure to time-stamp or docket notice of appeal on

     receipt resulted in breakdown). More than mere hardship must be shown; a trial court may grant an

     appeal only if the delay is "caused by extraordinary circumstances involving 'fraud or some breakdown

     in the court's operation through a default of its officers." Id. Such cases may involve failure of the

     prothonotary to file dispositions or other relevant information on the docket, or give notice of those

     dispositions to interested parties. Rothstein, 853 A.2d at 1075.

            Aniappeal may be permitted where "1) the appellant's notice of appeal was fried late as a result

     of non-negligent circumstances, either as they relate to the appellant or the appellant's counsel; 3) the

     appellant filed the notice of appeal shortly after the expiration date; and 3) the appellee was not

     prejudiced by the delay.'' Americone, 839 A.2d at 113. Non-negligent reasons include illness and

     nospttatizations. Id.

            In the instant case, Appellant has not shown that non-negligent circumstances resulted in this
               '
     delay. Service was attempted at the 5100 Lebanon Avenue address, however, the process server was

     informed 9y a person in the apartment Appellant gave as his address that Appellant was unknown to

     him. Service was then attempted at two separate addresses, one with a postal verification, and the

     other where a woman bearing the same name as Appellant's eye witness informed the process server

     that Appellant lived in 3900 Haverford Avenue, Apt. 302. From the record, it appears that any failure to

     serve was jdue to Appellant's own interference.

            Additionally, Appellant cannot claim that he "promptly filed" his appeal. Even assuming he did

     not have notice of the municipal court action at the time of its filing, the notice from PENNDOT




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regarding his license suspension was sent to him May 7, 2014. He appealed that notice May 29, 2014.

The notice included the court term and number of the action resulting in judgment. Consequently,

Appellant was aware of said action at the very least as of May 29, 2014, though he did not file a

petition to! appeal   nune pro tune until January 28, 2015, seven (7) months and thirty (30) days later.
None of ~e facts listed above amount to fraud, or a breakdown of this Court's operations.

        Consequently, Appellant has not shown good cause why his Petition to Appeal none pro tune
           '

should have been granted and this Court did not abuse its discretion in denying said Petition.



                                               CONCLUSION

        For. all of the reasons stated above, this Court's decision should be affirmed and Appellant's

appeal dis,:nissed.




                                                              BY THE COURT:



DATE:    JV\~~ ~~ J._Q/'?




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