J-A21034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEPHEN KLEMASH,                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

JENNIFER KLEMASH,

                        Appellee                    No. 3298 EDA 2014


             Appeal from the Order entered October 23, 2014,
           in the Court of Common Pleas of Philadelphia County,
          Civil Division, at No(s): February Term, 2013 No. 02264


BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                              FILED JULY 06, 2015

     Stephen Klemash (“Appellant”) appeals from the trial court’s order

denying his motion for reconsideration of his post-trial motion for relief

pursuant to Pa.R.C.P. 227.1. Finding that Appellant’s post-trial motion was

untimely, we quash Appellant’s appeal and affirm the trial court’s order and

resulting judgment in favor of Jennifer Klemash (“Ms. Klemash”).

     The trial court summarized the following background:

            This case involves a dispute over the proceeds from the
     sale of real estate. Appellant and his former sister-in-law [Ms.
     Klemash] both claimed that they were entitled to the proceeds.
     The parties deposited the proceeds in an escrow account and the
     Appellant filed a Complaint requesting that the trial court order
     that the escrow agent release the funds to the Appellant. The
     trial court presided over a two day bench trial and on July 17,
     2014, the trial court awarded the proceeds in the escrow account
     to [Ms. Klemash].



*Former Justice specially assigned to the Superior Court.
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Trial Court Opinion, 3/20/15, at 1.

      Procedurally, the trial court explained:

            On February 22, 2013, Appellant filed a Complaint against
      [Ms. Klemash], alleging that the Appellant was entitled to
      proceeds from the sale of real estate. An escrow agent was
      holding the funds during the litigation.

            On March 7 and 10, 2014, the trial court heard evidence
      on the matter. After the parties briefed the issues, the trial
      court, on July 17, 2014, issued Findings of Facts and Conclusions
      of Law and entered judgment against the Appellant and in favor
      of [Ms. Klemash]. (“Order of July 17”).

            The Appellant failed to file a Motion for Post-Trial Relief
      within ten days of July 17, 2014, the date on which the trial
      court issued the Order of July 17. Instead, the Appellant, on
      August 15, 2014, filed a Notice of Appeal of the Order of July 17.
      On September 30, 2014, the Appellant withdrew his Notice of
      Appeal of the Order of July 17.

             In an effort to preserve his appellate rights on the
      substantive issues, the Appellant filed the following motions and
      the trial court issued the following Orders.

      • On September 15, 2014, the Appellant filed Post-Trial Motions
      to the Order of July 17.

      • On September 16, 2014, the trial court denied the Motion for
      Post-Trial Relief because the Appellant had already filed a Notice
      of Appeal and the Appellant failed to file a Motion for Post-Trial
      Relief within ten days of the Order of July 17, 2014. (“Order of
      September 16”).

      • On September 26, 2014, the Appellant filed a Motion for
      Reconsideration of the Order of September 16 or in the
      Alternative Motion for Post Trial Relief Nunc Pro Tunc.

      • The trial court denied this motion on October 23, 2014.
      (“Order of October 23”) for the reasons discussed below.

      • On November 19, 2014, Appellant filed a Notice of Appeal of
      the Order of October 23.



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     Th[e October 23, 2014 Order) is the Order that is the subject of
     this appeal.

Trial Court Opinion, 3/20/15, at 2-3.    Appellant and the trial court have

complied with Pa.R.A.P. 1925.

     Appellant presents numerous issues for our review:

     (a) Procedural Issues

     1. Whether there was clear error in applying the facts or law to
     the case at hand in that the Trial Court should consider the date
     of the decision or “Final Order” to be September 9, 2014 (the
     date the Motion to Stay Distribution was entered).

     2. Whether the Trial Court abused its discretion when it denied
     [Appellant’s] Motion for Reconsideration.

     3. Whether the Trial Court abused its discretion when it denied
     [Appellant’s] Motion Nunc Pro Tunc.

     4. Whether [Appellant’s] late filing was as a result of “non-
     negligent happenstance”.

     (b) Substantive Issues

     5. Whether the Court’s determination that [Appellant] failed to
     meet the third element of unjust enrichment was supported by
     the evidence and the applicable law.

     6. Whether the Court’s determination that [Ms. Klemash]
     obtained the rights to the proceeds from the sale of the Property
     as a result of a legitimate court proceeding was supported by the
     evidence and the applicable law.

     7. Whether the Court’s determination that [Appellant] is
     collaterally estopped from asserting his interest in the property
     by a judicial proceeding in which [Appellant] did not participate
     was supported by the evidence and the applicable law.

     8. Whether the Court’s determination that it was not
     unconscionable for [Ms. Klemash] to receive the benefits of
     [Appellant’s] efforts was supported by the evidence and the
     applicable law.



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        9. Whether the Court’s determination that [Appellant]
        inadequately protected his right to compensation was supported
        by the evidence and applicable law including Styer v. Hugo, 422
        Pa. Super. 262, 619 A.2d 347 (1993).

        10. Whether the Court’s determination that [Appellant’s]
        attendance at his brother's divorce trial constitutes sufficient
        involvement in the proceeding for the divorce decree between
        [Ms. Klemash] and Christian Klemash to be res judicata as to
        him was supported by the evidence and the applicable law.

Appellant’s Brief at 2-4.

        Based on our careful scrutiny of the record, and our resolution of

Appellant’s four procedural appellate issues, we conclude that quashal is

warranted.

        It is undisputed that the two-day bench trial in this matter was

conducted on Friday, March 7, 2014 and Monday, March 10, 2014.

Following the parties’ submissions of proposed findings of fact and

conclusions of law, the trial court issued a written decision finding in favor of

Ms. Klemash and against Appellant. Order, 7/17/14, at 1. Notice pursuant

to Pa.R.C.P. 236 was given regarding the July 17, 2014 order on the same

date.

        Rule 227.1 specifically provides that:

        Rule 227.1 Post-Trial Relief

        (c) Post-trial motions shall be filed within ten days after

        (1) verdict, discharge of the jury because of inability to agree, or
        nonsuit in the case of a jury trial; or

        (2) notice of nonsuit or the filing of the decision in the case
        of a trial without a jury.



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Pa.R.C.P. 227.1(c)(1)-(2) (emphasis supplied).          Thus, pursuant to Rule

227.1(c), Appellant was required to file his post-trial motions for relief on or

before Monday, July 28, 2014.

      The trial court explained:

             The Appellant argues that he filed his Motion for Post-Trial
      Relief in a timely manner because the ten day period did not
      begin to run until September 9, 2014, the date on which the trial
      court issued an order prohibiting the escrow agent from
      releasing the funds to [Ms. Klemash] during the pendency of the
      appeal to Superior Court. Pennsylvania Rule of Civil Procedure
      227.1 is clear that when a court issues a judgment after a bench
      trial, a party must file a Motion for Post Trial Relief within ten
      days after the filing of the decision. Pa.R.C.P. No. 227.1 (c).
      Nowhere in the language of Rule 227.1 is there a reference to a
      “final order.” In this case, the trial court filed its decision on July
      17, 2014 when it issued Findings of Facts and Conclusions of
      Law and ordered that [Ms. Klemash] had the right to the
      proceeds from the sale of real estate. In contrast, the Order of
      September 9, 2014, which dealt with the release of the funds
      during the pendency of the appeal was merely ancillary to the
      Order of July 17, 2014. Thus, the Order of July 17 was the order
      for which Rule 227.1 required the Appellant to file a Motion for
      Post-Trial Relief.

Trial Court Opinion, 3/20/15, at 5-6. We agree with the trial court.

      Appellant asserts that the September 9, 2014 is the appropriate order

from which to calculate the time frame relative to his appellate rights.

However, as the trial court observed, “[t]he trial court also entered a series

of orders that prohibited the escrow agent from releasing the funds to [Ms.

Klemash] during the pendency of the appeal.         Those orders, however, are

not the subject of this appeal.        Moreover, those orders benefitted the

Appellant because the orders prohibited the escrow agent from releasing the


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J-A21034-15



funds to [Ms. Klemash] pending the Appellant’s appeal and thus, Appellant

was not aggrieved by those orders and would not have an independent basis

to appeal those orders.”     Trial Court Opinion, 3/20/15, at 3 n.1.      Indeed,

“[a] prevailing party is not ‘aggrieved’ and therefore, does not have standing

to appeal an order that has been entered in his or her favor.” In re Estate

of Pendergrass, 26 A.3d 1151, 1154 (Pa. Super. 2011); see Pa.R.A.P.

501.

       Appellant challenges the trial court’s denial of his motion for

reconsideration of the trial court’s denial of his untimely post-trial motions.

In denying reconsideration, the trial court explained:

              The Motion for Reconsideration at issue in this appeal
       requests the court to reconsider its denial of the Motion for Post-
       Trial Relief. The trial court denied the Motion for Post-trial Relief
       because the Appellant filed it after he filed his Notice of Appeal.
       Additionally, the Appellant filed his Motion for Post-Trial Relief
       two months after the trial court entered the Order of July 17.
       Finally, the trial court denied the Motion for Reconsideration
       because there was no substantive merit to the issues raised in
       the Motion for Post-Trial Relief.

              More importantly, the Motion for Reconsideration does not
       provide the trial court with any additional facts or new precedent
       on which to reconsider its original order. Rather, the basic facts
       and law remain. The Appellant failed to file a Motion for Post-
       Trial Relief within ten days of the judgment and thus, waived all
       issues on appeal. See Chalkey v. Roush, 569 Pa. 462. 805 A.2d
       491 (2002); Pa.R.A.P. 302(a).

Trial Court Opinion, 3/20/15, at 5. Again, we agree with the trial court.

       In Vietri ex rel Vietri v. Delaware Valley High School, 63 A.3d

1281 (Pa. Super. 2013), we explained:


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     Our Supreme Court has characterized the purpose of nunc pro
     tunc restoration of appellate rights as follows:

        Allowing an appeal nunc pro tunc is a recognized exception
        to the general rule prohibiting the extension of an appeal
        deadline. This Court has emphasized that the principle
        emerges that an appeal nunc pro tunc is intended as a
        remedy to vindicate the right to an appeal where that right
        has been lost due to certain extraordinary circumstances.
        Generally, in civil cases an appeal nunc pro tunc is granted
        only where there was fraud or a breakdown in the court's
        operations through a default of its officers.

     Union Elec. Corp. v. Bd. Of Prop. Assessment, Appeals & Review
     of Allegheny Cty., 560 Pa. 481, 746 A.2d 581, 584 (2000)
     (citations and internal quotation marks omitted).

        Our standard of review over an order denying nunc pro tunc
     restoration of a petitioner's appellate rights is deferent:

        The denial of an appeal nunc pro tunc is within the
        discretion of the trial court, and we will only reverse for an
        abuse of that discretion. Freeman v. Bonner, 761 A.2d
        1193, 1194 (Pa.Super.2000).            In addition to the
        occurrence of “fraud or breakdown in the court's
        operations,” nunc pro tunc relief may also be granted
        where the appellant demonstrates that “(1) [his] notice of
        appeal was filed late as a result of nonnegligent
        circumstances, either as they relate to the appellant or the
        appellant's counsel; (2) [he] filed the notice of appeal
        shortly after the expiration date; and (3) the appellee was
        not prejudiced by the delay.” Criss v. Wise, 566 Pa. 437,
        781 A.2d 1156, 1159 (2001).

     Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075
     (Pa.Super.2004) (citations modified). “An abuse of discretion
     occurs when a trial court, in reaching its conclusions, overrides
     or misapplies the law, or exercises judgment which is manifestly
     unreasonable, or the result of partiality, prejudice, or ill will.”
     U.S. Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa. Super. 2009).




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J-A21034-15



      While in Vietri we allowed an untimely appeal where a misleading

Superior Court order caused appellant the loss of his appellate rights, we

nevertheless acknowledged that appellate rights would be waived in

situations akin, inter alia, to Chalkey v. Roush, supra. Vietri, 63 A.3d at

1286-1287.

      In Chalkey, our Supreme Court stated:

      Under Rule 227.1, a party must file post-trial motions at the
      conclusion of a trial in any type of action in order to preserve
      claims that the party wishes to raise on appeal. []

                                     ***

      FN12: [] Furthermore, if a party is unsure whether the trial court
      has entered an adjudication from which post-trial motions must
      be filed, the party may always petition the trial court to
      determine whether the trial court intended its order to be an
      adjudication from which post-trial motions would follow.

Chalkey, 805 A.2d at 496.

      Instantly, Appellant did not file timely post-trial motions following the

July 17, 2014 order. Nor did Appellant file a petition to clarify whether the

July 17, 2014 required such motion. Also, this is not a scenario where the

post-trial motions were untimely filed due to fraud, a breakdown in court

operations, as a result of extraordinary circumstances, or because the trial

court proceeding itself did not require such a filing.

      Appellant further challenges the trial court’s denial of his motion for

nunc pro tunc relief, regarding which the trial court reasoned:

            In this case, the Appellant's explanation for the late filing
      of the Motion for Post-Trial Relief was that Appellant's “counsel


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J-A21034-15


     reasonably determined that the Order granting or denying the
     Motion for the Stay was the final Order or ‘decision’ in this
     matter that would trigger the need for post-trial motions
     pursuant to Rule 227.1.” (See Brief in Support of Motion for
     Reconsideration or in the Alternative Motion for Post Trial Relief
     Nunc Pro Tunc. p. 5).

            In this case, the basis for the request for Nunc Pro Tunc
     relief is the misinterpretation of Rule 227.1. This does not
     qualify as a “non-negligent circumstance” and the trial court
     properly denied the Motion for Nunc Pro Tunc Relief.

           In addition, Appellant did not file the Post-Trial Motion
     “shortly after the expiration date,” rather, Appellant filed the
     motion almost two months after the expiration date. Appellant
     also failed to demonstrate that [Ms. Klemash] would not be
     prejudiced by nunc pro tunc restoration of appellate rights. See
     Rothstein v. Polysciences, Inc., 853 A.2d 1072 (2004 ).

            Therefore, the trial court properly denied nunc pro tunc
     relief where there was no demonstrated breakdown in court
     operations.     The Appellant misinterpreted a rule of civil
     procedure. The Appellant filed a Post-Trial Motion almost two
     months after the deadline, and the Appellant failed to
     demonstrate that [Ms. Klemash] would not be prejudiced by a
     nunc pro tunc restoration of appellate rights. Since there is no
     legal basis to grant the Appellant's request for nunc pro tunc
     relief, the trial court properly denied the Motion for
     Reconsideration.

Trial Court Opinion, 3/20/15, at 7.        Based on applicable jurisprudence

discussed above, we find that the trial court’s analysis is supported by the

record.

     We recently emphasized:

            [T]he filing of post-trial motions ... ensure[s] that the trial
     judge has a chance to correct alleged trial errors.              This
     opportunity to correct alleged errors ... advances the orderly and
     efficient use of our judicial resources. First, appellate courts will
     not be required to expend time and energy reviewing points on
     which no trial ruling has been made. Second, the trial court may
     promptly correct the asserted error. With the issue properly

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      presented, the trial court is more likely to reach a satisfactory
      result, thus obviating the need for appellate review on this issue.
      Or if a new trial is necessary, it may be granted by the trial court
      without subjecting both the litigants and the courts to the
      expense and delay inherent in appellate review. Third, appellate
      courts will be free to more expeditiously dispose of the issues
      properly preserved for appeal....

D.L. Forrey & Associates, Inc. v. Fuel City Truck Stop, Inc., 71 A.3d

913, 919 (Pa. Super. 2013) (internal citations omitted).

      Accordingly, finding that Appellant failed to file timely post-trial

motions for relief as required by Pa.R.C.P. 227.1, and discerning no abuse of

discretion or trial court error of law in denying Appellant nunc pro tunc relief

relative to his untimely post-trial motion, we quash Appellant’s appeal and

affirm the trial court’s order and resulting judgment in favor of Ms. Klemash.

      Appeal quashed.     Judgment affirmed.    Case stricken from argument

list. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015




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