          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harry L. Bierley,                        :
                                         :
                           Appellant     :
                                         :
                    v.                   : No. 551 C.D. 2017
                                         : Submitted: July 6, 2018
James L. Kowalski; Elizabeth             :
Kowalski-Osterberg; William              :
Osterberg; Victoria Dougan;              :
Victor Kowalski; and Ruth                :
Kowalski                                 :



BEFORE:      HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                         FILED: September 6, 2018

             Harry L. Bierley (Bierley), proceeding pro se, appeals from an order of
the Court of Common Pleas of Erie County (trial court), which sustained Appellees’1
preliminary objections in the nature of a demurrer and dismissed Bierley’s complaint
with prejudice. This case returns to us following our remand to the trial court for a
determination as to whether Bierley was entitled to nunc pro tunc relief. On remand,
the trial court determined that Bierley was not entitled to nunc pro tunc relief, and it
remitted its original decision dismissing Bierley’s complaint. This appeal is now



      1
         Appellees are James L. Kowalski; Elizabeth Kowalski-Osterberg; William Osterberg;
Victoria Dougan; Victor Kowalski; and Ruth Kowalski.
ripe for disposition.2 In addition to the appeal, Bierley presents an application for
remand. For the reasons that follow, we affirm the order of the trial court and deny
Bierley’s application for remand.
                We begin by briefly summarizing the relevant history of this litigation.
The underlying dispute began in 2015, when Bierley filed his first complaint for
unjust enrichment (2015 Action) against Appellees for the care rendered to their
mother, Linda Kowalski (Deceased), who died on February 1, 2015, while residing
at 3123 German Street, Erie, Pennsylvania (Property).3 Bierley alleged that he and
the Deceased lived together for 25 years and that he cared for her and maintained
the Property during that time. Original Record (O.R.), Item No. 17.25, Appendix in
Support of Preliminary Objections, Complaint for Unjust Enrichment. Bierley filed
suit seeking monetary damages and the deed to the Property from Appellees,
claiming they were unjustly enriched by his services. Id.
                Appellees filed preliminary objections (POs) to the complaint,
contending, among other things, that Bierley did not state a cause of action for unjust
enrichment. The trial court issued a memorandum order sustaining Appellees’ POs
in the nature of a demurrer and dismissing the complaint with prejudice on this basis.
O.R., Item No. 17.25, Appendix in Support of Preliminary Objections, Trial Court



        2
           This Court granted the parties leave to file supplemental briefs addressing any issues
raised by the trial court’s nunc pro tunc order. Bierley filed a supplemental brief. Appellees filed
a letter indicating their intention to rely solely on their principal brief previously filed in this matter.

        3
         Upon Deceased’s death, Appellees decided to sell the Property. There was an ancillary
landlord/tenant action to recover possession of the Property, which Bierley would not vacate. An
eviction judgment was entered against Bierley, which was not timely appealed. See Kowalski v.
Bierley (C.P. Erie, No. LT-156-2015, filed June 23, 2015); see also Appellees’ Brief at 2-4.



                                                     2
Memorandum Order, 10/12/15, at 1-2.4 From this decision, Bierley filed an untimely
appeal, which was quashed.              O.R., Item No. 17.25, Appendix in Support of
Preliminary Objections, Superior Court Order, 1/7/16, at 1.
                 In February 2017, Bierley commenced this lawsuit by filing a praecipe
for the issuance of a writ of summons to which he appended a “Suit in Equity” (2017
Action). O.R., Item No. 6.1, Praecipe for Writ of Summons. Bierley again claimed
Appellees owed him compensation for the care he rendered to the Deceased. Id. He
sought both monetary compensation and the deed to the Property. Id.
                 Appellees filed POs on the basis that Bierley raised these same claims,
against the same defendants, based on the same factual background in the 2015
Action, which was fully and finally litigated. Thus, Appellees asserted that the
doctrine of res judicata5 applied and required the dismissal of the 2017 Action.

       4
           The trial court opined:

                 [Bierley] failed to allege any facts establishing a duty owed by
                 [Appellees] and, more particularly, that [Appellees] were unjustly
                 enriched. Furthermore, the Complaint is devoid of any factual
                 allegations establishing that [Appellees] received any benefit from
                 [Bierley’s] actions.

O.R., Trial Court Memorandum Order at 2.

       5
           As our Supreme Court has opined:

                 “Res judicata” means “a thing adjudged” or a matter settled by
                 judgment. Traditionally, American courts have used the term res
                 judicata to indicate claim preclusion, i.e., the rule that a final
                 judgment rendered by a court of competent jurisdiction on the merits
                 is conclusive as to the rights of the parties and constitutes for them
                 an absolute bar to a subsequent action involving the same claim,
                 demand or cause of action.

McNeil v. Owens-Corning Fiberglas Corp., 680 A.2d 1145, 1148 n.2 (Pa. 1996) (internal citations
omitted and emphasis added).
                                                   3
Bierley replied and filed a motion for recusal, which the trial court denied. O.R.,
Trial Court Order, 3/31/17, at 1.
             On April 3, 2017, the trial court sustained Appellees’ POs in the nature
of a demurrer and dismissed the complaint with prejudice. O.R., Trial Court Order,
4/3/17, at 1. Within the 30-day appeal period, Bierley filed a notice of appeal in this
Court.
             In response, on May 17, 2017, the trial court directed Bierley to file a
Concise Statement of Errors Complained of on Appeal (Statement) pursuant to Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure “within twenty-one (21)
days of the date of this Order. Any issue not properly included in the Statement
timely filed and served pursuant to the Rule shall be deemed waived.” O.R., Trial
Court Order, 5/17/17, at 1.
             However, Bierley did not file a Statement until June 13, 2017, well
beyond the 21-day period. Bierley requested an extension to file, which the trial
court denied. The trial court, in its 1925(a) opinion, noted that Bierley failed to
timely file a Statement as directed and, thus, it determined that any issues raised on
appeal were waived. O.R., Trial Court 1925(a) Opinion, 6/28/17, at 1.
             In his appeal, Bierley claimed that he did not receive timely notice from
the trial court and that his late Statement should be excused on this basis. Upon
examination of the record, it appeared that the trial court’s May 17, 2017 order was
initially sent to Bierley’s former address, returned to sender on May 22, 2017, and
then mailed to his forwarding address. O.R., Civil Docket, at 3; O.R., Item No. 33.2
(returned envelope). Bierley acknowledged receiving the order on May 24, 2017.
O.R., Item No. 37.4, Request for Time Extension. It was unclear whether the delay
was attributable to extraordinary circumstances. Thus, we remanded the matter to


                                          4
the trial court to determine whether Bierley was entitled to nunc pro tunc relief.
Bierley v. Kowalski (Pa. Cmwlth., No. 551 C.D. 2017, filed March 2, 2018).
               On remand, the trial court determined Bierley was not entitled to nunc
pro tunc relief. The trial court recognized the mailing delay of one week, but
determined Bierley was nevertheless afforded adequate time (15 days from his
receipt of the order) in which to file a Statement. Thus, the trial court remitted its
1925(a) opinion filed on June 28, 2017 in support of its dismissal.
               The case now returns to us following remand.6 Also before us for
disposition is Bierley’s application for remand for further proceedings in the 2017
Action.
               Rule 1925(b)(1) of the Pennsylvania Rules of Appellate Procedure
provides that, if a trial court desires “clarification of the errors complained of on
appeal, it may enter an order directing the appellant to file and serve on the judge a
[Statement].” Pa. R.A.P. 1925(b)(1). The trial court “shall allow the appellant at
least 21 days from the date of the order’s entry on the docket for the filing and service
of the Statement.” Pa. R.A.P. 1925(b)(2) (emphasis added). Where an appellant
fails to timely file a Statement, all issues for appeal are waived. Commonwealth v.
Castillo, 888 A.2d 775, 780 (Pa. 2005).
               However, “[u]pon application of the appellant and for good cause
shown, the judge ‘may’ enlarge the time period initially specified or permit an

       6
         Our scope of review of a decision to permit or deny nunc pro tunc relief is limited to a
determination of whether the trial court abused its discretion. Union Electric Corp. v. Board of
Property Assessment, Appeals & Review of Allegheny County, 746 A.2d 581, 583 (Pa. 2000). “‘An
abuse of discretion is not merely an error of judgment, but occurs only 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.’” Commonwealth v. Safka, 141
A.3d 1239, 1248 (Pa. 2016) (quoting Paden v. Baker Concrete Construction, Inc., 658 A.2d 341,
343 (Pa. 1995)).
                                                5
amended or supplemental Statement to be filed.” Pa. R.A.P. 1925(b)(2) (emphasis
added). “Good cause includes, but is not limited to, delay in the production of a
transcript necessary to develop the Statement so long as the delay is not attributable
to a lack of diligence in ordering or paying for such transcript by the party or counsel
on appeal.” Id.
             “In extraordinary circumstances, the judge may allow for the filing of
a Statement or amended or supplemental Statement nunc pro tunc.” Pa. R.A.P.
1925(b)(2) (emphasis added). In general, nunc pro tunc relief is warranted only
when there has been a breakdown in the process constituting “extraordinary
circumstances.” Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001). In determining
whether extraordinary circumstances exist, a court must consider whether there was
fraud or a breakdown in the court’s operations or whether the party seeking relief
has proven that:

             (1) the appellant’s notice of appeal was filed late as a result
             of non-negligent circumstances, either as they relate to the
             appellant or the appellant’s counsel; (2) the appellant filed
             the notice of appeal shortly after the expiration date; and
             (3) the appellee was not prejudiced by the delay.
Id.
             Upon review, we conclude that the trial court did not abuse its
discretion in refusing to grant nunc pro tunc relief. On May 17, 2017, the trial court
entered its order on the docket directing Bierley to file a Statement within 21 days.
Bierley did not receive the order until May 24, 2017. Although there was a slight
delay between entry on the docket and receipt, Bierley still had 15 days in which to
file a Statement. The trial court found that this was “adequate time” in which to file
a Statement. O.R., Trial Court Remand Opinion, 3/6/18, at 1. As the trial court aptly
observed, “in some postal areas, a one week mailing period is not unusual under

                                           6
ordinary circumstances.”             Id. at 2.       Bierley did not establish extraordinary
circumstances for his inability to file a Statement within the time afforded. Having
failed to timely file a Statement, Bierley has not preserved any issues for review.7
Castillo, 888 A.2d at 780.
                 Accordingly, we affirm the trial court’s order of April 3, 2017,
sustaining Appellees’ POs in the nature of a demurrer and dismissing Bierley’s 2017
Action with prejudice. In conjunction therewith, we deny Bierley’s application for
remand.




                                                 MICHAEL H. WOJCIK, Judge




       7
           Notwithstanding waiver, the trial court did address the merits of Bierley’s appeal stating:

                 Furthermore, this court considers [Bierley’s] appeal to be abusive,
                 vexatious, and repetitive. This issue was fully litigated in a prior
                 proceeding at Erie County Docket No. 1147-2015 [(2015 Action)].
                 There, [Bierley] sued the same defendants regarding the same
                 factual background. The prior action was appealed to the
                 Pennsylvania Superior Court and was ultimately quashed as
                 untimely. Since then, this court has been flooded with often
                 indecipherable filings attempting to raise from the dead this very
                 extinct claim.

                 At the above docket, this Court sustained Appellees’ [POs] which
                 raised the fact that this matter has been previously and finally
                 litigated and therefore, the doctrine of res judicata applies to bar this
                 lawsuit.

O.R., Trial Court 1925(a) Opinion at 1.
                                                    7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harry L. Bierley,                     :
                                      :
                         Appellant    :
                                      :
                    v.                : No. 551 C.D. 2017
                                      :
James L. Kowalski; Elizabeth          :
Kowalski-Osterberg; William           :
Osterberg; Victoria Dougan;           :
Victor Kowalski; and Ruth             :
Kowalski                              :



                                     ORDER


            AND NOW, this 6th day of September, 2018, the order of the Court of
Common Pleas of Erie County, dated April 3, 2017, is AFFIRMED and the
Appellant’s Application for Remand is DENIED.



                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
