J-A04030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM V. FRANKOVICH AND WILLIAM              IN THE SUPERIOR COURT OF
J. FRANKOVICH,                                       PENNSYLVANIA

                            Appellants

                       v.

PAULINE MCCLOSKEY,

                            Appellee               No. 396 WDA 2015


               Appeal from the Order Entered February 11, 2015
                In the Court of Common Pleas of Forest County
                    Civil Division at No(s): CD 127 OF 2011


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED MARCH 23, 2016

       William V. Frankovich and William J. Frankovich appeal from the order

entered February 11, 2015, which denied their motion seeking nunc pro tunc

relief.1 We affirm.

       In 2010, Appellants were interested in purchasing a property to be

used as a base camp for area recreational activities. Appellants required a

property with an on-site sewage system and a water well.      In May 2010,

Appellants purchased a property from Pauline McCloskey located in Forest

County, Pennsylvania. Following their purchase, Appellants discovered that
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1
  The subject order was signed and docketed February 6, 2015. However,
the Forest County Prothonotary notified the parties of the order on February
11, 2015. See Pa.R.A.P. 108(b); Pa.R.C.P. 236(b).
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the property boundaries were not properly marked and that a portion of the

septic system encroached upon a neighbor’s property.

        In September 2011, Appellants commenced this action, filing a

complaint asserting violations of the Unfair Trade Practices Consumer

Protection Law (UTPCPL), 73 P.S. §§ 201-1 – 201-9.3, and the Real Estate

Seller Disclosure Law, 68 Pa.C.S.A. §§ 7301-7314. The matter proceeded to

a bench trial, held in December 2014. Following Appellants’ case-in-chief,

Appellee made an oral motion for nonsuit, asserting that Appellants had

failed to adduce any evidence tending to prove that Appellee knew or had

reasons to know that her statements regarding the property were false or

misleading. Following an extensive review of Appellants’ evidence, the trial

court agreed and granted Appellee’s motion for nonsuit.          See Notes of

Testimony (N.T.), 12/15/2014, at 203-238;2 see also Trial Court Order,

12/17/2014.

        In January 2015, Appellants filed a motion for leave of court to file a

motion for post-trial relief nunc pro tunc to contest the trial court’s entry of

compulsory nonsuit.         See Motion, 01/12/2015.    Following argument on

Appellants’ motion in February 2015, the trial court denied Appellants nunc

pro tunc relief.       See N.T., 02/06/2015; see also Trial Court Order,

02/11/2015.
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2
    The trial transcript is erroneously dated 12/15/2015.




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      Appellants timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

      Appellants raise the following issue:

      When the [t]rial [c]ourt announced on the record that nonsuit
      was granted and judgment was entered in favor of [Appellee]
      and the [t]rial [c]ourt issued a subsequent [o]rder specifically
      referencing its statements on the record, did the [t]rial [c]ourt
      abuse its discretion when it denied the [motion for nunc pro tunc
      relief] when the confusion created by the [c]ourt’s actions was
      plainly shown and the opposing party demonstrated no
      prejudice?

Appellants’ Brief at 4.

      Initially, we note that an order granting nonsuit is not itself an

appealable order.    Rather, an aggrieved party must appeal from an order

denying removal of nonsuit. See Conte v. Barnett’s Bootery, Inc., 467

A.2d 391, 392 (Pa. Super. 1983).      Rule 227.1 governs in this regard and

requires a motion seeking removal of nonsuit to be filed within ten days.

Pa.R.C.P. 227.1(a) and (c).

      Here, the court granted Appellee’s motion for nonsuit on December 15,

2014. See N.T. at 238; see also Trial Court Order, 12/17/2014. Appellants

did not timely challenge the entry of nonsuit, seeking nunc pro tunc relief on

January 12, 2015.     Thereafter, the trial court denied nunc pro tunc relief,

concluding there was “no legitimate excuse” for Appellants’ untimely filing.

Trial Court Opinion, 05/04/2015, at 4.

      Appellants contend that the trial court employed “confusing language”

when it granted Appellee’s motion for nonsuit, stating on the record that

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“judgment is entered in favor of [Appellee].”       Appellants’ Brief at 17, 18

(quoting N.T. at 238).       According to Appellants, use of this language

convinced them that they had no alternative but to appeal the trial court’s

decision; thus, they failed to timely file post-trial motions.

      We review the decision of a trial court whether to permit an untimely

filing for an abuse of discretion.    Lenhart v Cigna Cos., 824 A.2d 1193,

1195 (Pa. Super. 2003). “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 the result of partiality,

prejudice, bias or ill will as shown by the evidence or the record.”         Id.

(quoting Freeman v. Bonner, 761 A.2d 1193, 1194-1195 (Pa. Super.

2000)). Generally, nunc pro tunc relief will be granted only in “extraordinary

circumstances involving fraud or some breakdown in the court's operation

through a default of its officers.”   Id. (quoting McKeown v. Bailey, 731

A.2d 628, 630 (Pa. Super. 1999)).

      Here, we discern no abuse of discretion.        It is well-established that

“regardless of what terms were used by the trial court in its decision,” a

party must file post-trial motions in order to preserve issues for appeal. Id.

at 1197 (rejecting an argument nearly identical to that raised by Appellants

here, where the appellant complained that the trial court’s use of the word

“judgment,” had transformed a non-appealable decision into an immediately

appealable judgment). Moreover, “[t]he grant of nunc pro tunc relief is not


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designed to provide relief to parties whose counsel has not followed proper

procedure in preserving appellate rights.”       Id. at 1197-98.       Clearly,

Appellants were on notice of their obligation to file post-trial motions.

Accordingly, we affirm the order of the trial court denying Appellants nunc

pro tunc relief.3

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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3
  Essentially, Appellants have waived consideration of any substantive issues
regarding Appellee’s motion for nonsuit. Nevertheless, absent this waiver,
we discern no abuse of the trial court’s discretion or other legal error in its
decision. To the contrary, we agree with the trial court’s conclusion that
Appellants failed to adduce evidence that Appellee knew or should have
known that either (1) the property boundaries identified by her were
incorrect or (2) the property septic system encroached upon a neighbor’s
property. See Trial Court Opinion at 4.




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