J-S36017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JIMI ROSE,                                          IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

THE FARMER’S FIRE INSURANCE
COMPANY A/K/A FARMER’S FIRE
INSURANCE COMPANY,

                            Appellee                    No. 2683 EDA 2016


                  Appeal from the Order Entered July 15, 2016
                 In the Court of Common Pleas of Lehigh County
                       Civil Division at No(s): 2014-C-3423


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM PER CURIAM:                                    FILED JULY 21, 2017

       Appellant, Jimi Rose, appeals pro se from an order entered on July 15,

2016 denying his motion to set aside a settlement agreement. After careful

review, we are constrained to quash this appeal as untimely.1

       The relevant factual and procedural history in this case is as follows.

Appellant owned a commercial property located in Allentown, Pennsylvania,

which he insured through a policy of insurance purchased from Farmer’s Fire

Insurance Company (Farmers).             On May 8, 2013, a fire occurred at the

property, causing significant damage. When Appellant submitted a claim for
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1
   Appellant has filed two applications requesting additional time in which to
file a reply brief, as well as a motion to submit additional argument. We
have reviewed these submissions and shall deny them as moot.
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fire loss, Farmers refused payment, claiming the fire was caused by arson

and that Appellant’s policy was void ab initio because Appellant failed to

disclose tax liens on the property at the time he submitted his insurance

application.

      On October 23, 2014, Appellant filed a complaint against Farmers

alleging that the insurer breached its duties under the policy and that it

engaged in bad faith in refusing payment.             Farmers thereafter filed

preliminary objections to Appellant’s bad faith claim on December 10, 2014.

The trial court sustained Farmers’ preliminary objections by order dated

January 5, 2015. Discovery ensued and eventually the trial court denied a

motion for judgment on the pleadings filed by Appellant, as well as Farmers’

motion for summary judgment.

      In anticipation of a trial commencing sometime in May or June 2016,

the trial court convened a pre-trial conference on May 2, 2016.        The trial

court, together with counsel for both Appellant and Farmers, engaged in

settlement negotiations.     According to the trial court, both parties were

available   by   telephone   and   consulted   with   counsel   throughout   the

negotiations. See Trial Court Opinion, 10/7/16, at 2. Although productive,

the parties failed to reach a settlement agreement at the pre-trial

conference. Owing to a busy trial calendar, the court rescheduled trial for a

trial term that commenced on August 29, 2016.




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       On June 1, 2016, the trial court received a letter from counsel for

Farmers stating that the parties had reached a settlement agreement.

Appellant’s counsel confirmed the agreement by letter dated June 6, 2016.

On July 11, 2016, Appellant, acting pro se, filed a motion to set aside the

settlement agreement.          The motion alleged that the settlement, in the

amount of $45,000.00, was not in Appellant’s best interest and that

Appellant was coerced into accepting the agreement.         The court denied

Appellant’s motion to set aside the settlement on July 15, 2016.2

Subsequently, on July 18, 2016, Appellant, again acting pro se, filed a

motion to submit physical evidence in support of his motion to set aside the

settlement agreement. The trial court denied that motion on July 22, 2016.3

Trial counsel remained attached to this case when Appellant filed both pro se

motions.4

       Appellant filed a pro se notice of appeal on August 18, 2016,

purporting to appeal from the orders issued on July 15 and 22.         In his

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2
  The docket sheet shows that the prothonotary mailed notice of the court’s
order pursuant to Pa.R.C.P. 236 on July 15, 2016. The docket does not
indicate the intended recipient of the Rule 236 notice but, according to
Appellant’s notice of appeal, the notice was mailed to trial counsel.
3
 Notice of the trial court’s July 22, 2016 order was mailed to counsel on July
25, 2016. Again, the docket does not specify the intended recipient of the
notice.
4
 The certified record does not contain a motion to withdraw as counsel.
See Trial Court Opinion, 10/7/16, at 3.



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notice, filed 34 days after the trial court denied the motion to set aside the

settlement agreement, Appellant asserted that the court forwarded its

orders to trial counsel and that he did not learn of the July 15 order until

August 18, 2016.5 The trial court did not order Appellant to file a concise

statement pursuant to Pa.R.A.P. 1925(b) but nonetheless set forth its

rationale in an opinion issued on October 7, 2016.

        On appeal, Appellant complains that the trial court abused its

discretion in denying his pro se motion to set aside the settlement without a

hearing.6    Appellant asserts that he was entitled to a hearing that would

have allowed him to show that he was coerced into agreeing to the

settlement with Farmers and that trial counsel was aware that Appellant

lacked an understanding of the settlement agreement because of his

intellectual disabilities.

       Since the timeliness of an appeal implicates our jurisdiction, we cannot

address the merits of Appellant’s claims before determining whether his

appeal is timely.     Coulter v. Ramsden, 94 A.3d 1080, 1084 (Pa. Super.

2014), appeal denied, 110 A.3d 998 (Pa. 2014). It is well settled that:
____________________________________________


5
  According to the notice of appeal, trial counsel forward two copies of the
July 22 order to Appellant but never forwarded a copy of the July 15 order.
6
  We have not quoted a statement of the questions involved as Appellant has
omitted this section from his brief in contravention of our appellate rules.
See Pa.R.A.P. 2111(a)(4) and 2116(a). Indeed, Appellant’s submission is,
in several ways, decidedly noncompliant. Notwithstanding, we have elected
to forgo dismissal on this basis.



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       a notice of appeal must be filed within [30] days of the disputed
       order. Pa.R.A.P. 903(a). Specifically, Rule 903(a) provides that
       “the notice of appeal ... shall be filed within 30 days after the
       entry of the order from which the appeal is taken.” Pa.R.A.P.
       903(a).

Coulter, 94 A.3d at 1084.

       Appellant filed the instant appeal from the July 15, 2016 order denying

his pro se motion to set aside the settlement agreement.7 The docket sheet

in the certified record confirms that the prothonotary entered the order and

forwarded notice of it pursuant to Pa.R.C.P. 236 on July 15, 2015. Hence,

the 30-day appeal period began to run on that date.       Frazier v. City of

Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (appeal period begins to run

when order is entered on docket with required notation that appropriate

notice has been given). Appellant’s August 18, 2016 notice of appeal was

filed 34 days after the July 15 order. Thus, Appellant’s notice was patently

untimely and we lack jurisdiction over this appeal.      Commonwealth v.

Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) (Superior Court lacks

jurisdiction to consider untimely appeals).

       Appellant asserts that the issuance of notice of the court’s July 15

order to counsel of record, and not to Appellant, delayed the filing of

Appellant’s pro se notice of appeal. Appellant suggests that he should have
____________________________________________


7
  We focus our analysis on the timeliness of the appeal from the July 15 th
order because, if we find this aspect of the appeal to be untimely, no form of
relief from the order denying Appellant’s motion to submit physical evidence
would alter the disposition entered by the trial court.



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J-S36017-17


been the intended recipient of the prothonotary’s Rule 236 notice. Appellant

argues that this breakdown in the judicial system precluded him from filing a

timely notice of appeal. We disagree.

      As stated, the issuance of notice pursuant to Pa.R.C.P. 236, in addition

to entry of the July 15 order on the docket, triggered the appeal period in

this case. Rule 236 governs the dissemination of notice by the prothonotary

of entry of an order or judgment. In relevant part, Rule 236 provides that

the prothonotary shall immediately give written notice of the entry of “any []

order or judgment to each party’s attorney of record or, if unrepresented, to

each party.”    Pa.R.C.P. 236(a)(2).    The note following Rule 236(a)(2)

cross-references Rule 1012, which governs the entry and withdrawal of

appearances by counsel of record. Rule 1012 specifies that an attorney may

not withdraw his appearance without leave of court unless another attorney

has entered his appearance or another attorney is simultaneously entering

an appearance on behalf of a party and the change of attorneys will not

delay any stage of the litigation.   Pa.R.C.P. 1012(b)(1) and (2).   Reading

Rule 236 together with Rule 1012, it is evident that Rule 236 directs the

prothonotary to forward notice of the entry of an order to an attorney of

record, unless that attorney has withdrawn his appearance with leave of

court or has withdrawn under circumstances that do not require court

permission.




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      Here, as the court observed, trial counsel served as Appellant’s

attorney of record throughout the litigation, including the course of

settlement negotiations, and remained attached to this case when he

submitted his June 6, 2016 letter confirming that the parties reached a

settlement agreement. See Trial Court Opinion, 10/7/16, at 3. Thereafter,

trial counsel never petitioned to withdraw his appearance. It is undisputed

that Appellant filed both of his pro se motions as a represented party. Under

these circumstances, the prothonotary correctly forwarded notice of the July

15 order to trial counsel.

      We see no evidence of how the prothonotary’s application of Rule 236

constituted a breakdown in the judicial system. Pennsylvania courts heavily

disfavor hybrid representation; in fact, pro se motions by represented

parties are generally deemed to have no legal effect and are considered

nullities. See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super.

2016). Only limited exceptions to this principle have been found. See id. at

624; see also Commonwealth v. Leatherby, 116 A.3d 73, 78-79 (Pa.

Super. 2015). In this case, Appellant’s own election to file a pro se motion

while represented by counsel ultimately lead the prothonotary to forward

notice of the trial court’s July 15 order to the attorney of record, as required

by Rule 236.    In our view, altering the operation of Rule 236 in the way

Appellant   suggests   would   needlessly   overburden    the   office   of   the

prothonotary and inject uncertainty and confusion into the prothonotary’s


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otherwise straightforward application of Rule 236.         As the trial court

observed, the appropriate course of action for Appellant was to instruct trial

counsel to withdraw his appearance, which would permit Appellant to

proceed on his own behalf. In such a case, all court orders would then be

forwarded directly to Appellant, not trial counsel. Since that did not occur,

the prothonotary, on July 15, 2016, correctly forwarded its Rule 236 notice

to trial counsel, thereby triggering the appeal period.      Since Appellant’s

notice of appeal was filed outside the 30-day appeal window, it was untimely

and we lack jurisdiction to reach the merits of Appellant’s claims.

      Appeal quashed. Applications for relief denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2017




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