J-S15002-18

                             2018 PA Super 357

LORI A. DUMAS                                    IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA

                         Appellee

                    v.

TRACY M. BROOKS

                         Appellant                  No. 2007 EDA 2016


                Appeal from the Order Entered May 26, 2016
            In the Court of Common Pleas of Philadelphia County
           Family Court at No: 09-07534, PACSES No. 188110826

BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY STABILE, J.:                        FILED DECEMBER 31, 2018

      Appellant, Tracy M. Brooks (“Father”), appeals from an order entered

May 26, 2016 in the Court of Common Pleas of Philadelphia County, Family

Court, modifying the amount of child support owed by Father after the trial

court granted a motion for reconsideration filed by Appellee, Lori A. Dumas

(“Mother”), of its previous support order of September 17, 2015. We vacate

the May 26, 2016 order and reinstate the prior support order entered on

September 17, 2015.

      Mother and Father were married, but divorced in 2012. In 2015, Mother

filed a complaint seeking child support. Mother was the primary custodian of

the parties’ only child, while Father had custody every other weekend and for

dinner visits.

      On September 17, 2015, following an evidentiary hearing, the trial court

entered an order directing Father to pay child support to Mother. On October
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2, 2015, Mother filed a motion for reconsideration to increase the amount of

support.    On October 15, 2015, the trial court signed an order granting

Mother’s motion for reconsideration. The prothonotary received the signed

order the same day, a fact demonstrated by the time-stamp on the order. The

next day, October 16, 2015, Mother appealed the September 17, 2015 order

to this Court at No. 3360 EDA 2015. On October 28, 2015, the prothonotary

entered the October 15, 2015 order granting reconsideration on the docket.

       On April 8, 2016, more than 120 days after the prothonotary received

the order granting reconsideration, the trial court, seeking to clarify the status

of Mother’s motion for reconsideration, sent a letter to this Court advising that

it had granted Mother’s motion for reconsideration and requested that we

remand the matter to the trial court for further proceedings. In an order filed

on April 18, 2016, this Court dismissed Mother’s appeal at No. 3360 EDA 2015,

on the basis that the grant of reconsideration rendered Mother’s appeal from

the September 17, 2015 support order inoperative.            This Court further

directed the trial court to schedule a hearing on the motion for reconsideration

within the next thirty days.1
____________________________________________


1 At the time this Court entered its April 18, 2016 order dismissing Mother's
appeal and directed that a hearing on reconsideration be conducted within 30
days, we did not appreciate, and the trial court did not so advise us, that more
than 120 days already had passed from the grant of reconsideration. As
discussed in more detail, infra, this lapse of time precluded the trial court from
proceeding further. Mother further did not timely appeal from the deemed
denial of her motion for reconsideration. This Court may not enlarge the time
for the filing of a notice of appeal. Pa.R.A.P. 105(b).



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        On May 4, 2016 and May 23, 2016, the trial court held hearings relating

to Mother’s motion for reconsideration.          On May 26, 2016, the trial court

issued an order increasing Father’s support obligations. Father filed a timely

appeal, and both Father and the trial court complied with Pa.R.A.P. 1925.

        Father raises three issues in this appeal:2

        1. Did the lower court have jurisdiction to enter a reconsidered
        decision under Pa.R.C.P 1930.2 when the lower court neither
        requested additional testimony nor entered a reconsidered
        decision, within 120 days from the date reconsideration was
        granted[?]

        2. Did the trial court err and commit an abuse of discretion when,
        after initially granting Father credit for all his business deductions
        in a [f]inal [o]rder, the trial court then entered a reconsidered
        decision that granted him none, when no new evidence, no new
        arguments, and no new testimony was provided on the issue of
        deductions, and where no evidence exists that Father took the
        deductions to shelter disposable income available for child
        support[?]

        3. Did the trial court err and commit an abuse of discretion when,
        after initially entering an [o]rder that gave neither party a credit
        for health insurance coverage, the trial court entered a
        reconsidered decision that granted Mother a credit for health
        coverage, even though evidence had been ruled to be credible by
        the [j]udge in two separate hearings that Father provided health
        coverage for the child, and the trial court gave no reason for why
        it granted the credit to mother in the reconsidered decision[?]

Father’s Brief at 4.

        In his first argument, which we find dispositive of this appeal, Father

contends that the trial court lacked authority to modify the September 17,

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2   Mother did not file a brief in this Court.

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2015 support order by failing to enter a new decision within 120 days after

granting Mother’s motion for reconsideration. This issue implicates several of

our procedural rules.

      Pennsylvania Rule of Civil Procedure 1930.2 provides in relevant part:

      (a) There shall be no motions for post-trial relief in any domestic
      relations matter, including Protection of Victims of Sexual Violence
      or Intimidation matters.

      (b) A party aggrieved by the decision of the court may file a
      motion for reconsideration in accordance with Pa.R.A.P
      1701(b)(3).    If the court does not grant the motion for
      reconsideration within the time permitted, the time for filing a
      notice of appeal will run as if the motion for reconsideration had
      never been presented to the court.

      (c) The court shall render its reconsidered decision within 120
      days of the date the motion for reconsideration is granted, except
      as set forth in subdivision (e). If the court’s decision is not
      rendered within 120 days, the motion shall be deemed denied.

      (d) If the court does not enter a reconsidered decision within 120
      days, the time for filing a notice of appeal will begin to run anew
      from the date of entry of the reconsidered decision or from the
      121st day after the motion for reconsideration was granted.

      (e) If the court grants the motion for reconsideration and files its
      order within the 30-day appeal period, the court may issue an
      order during the applicable 120-day period directing that
      additional testimony be taken. If the court issues an order for
      additional testimony, the reconsidered decision need not be
      rendered within 120 days, and the time for filing a notice of appeal
      will run from the date the reconsidered decision is rendered.

Pa.R.C.P. 1930.2 (emphasis added).

      Rule   1930.2(b)   incorporates   the   timeliness   requirements   within

Pa.R.A.P. 1701(b)(3). Rule 1701(b)(3) provides that after an appeal is filed,

the trial court may:

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       [g]rant reconsideration of the order which is the subject of the
       appeal . . . if:

              (i) an application for reconsideration of the order is
              filed in the trial court . . . within the time provided or
              prescribed by law; and

              (ii) an order expressly granting reconsideration of
              such prior order is filed in the trial court . . . within
              the time prescribed by these rules for the filing of a
              notice of appeal3 . . . or within any shorter time
              provided or prescribed by law for the granting of
              reconsideration.

       A timely order granting reconsideration under this paragraph shall
       render inoperative any such notice of appeal . . . theretofore or
       thereafter filed or docketed with respect to the prior order. The
       petitioning party shall and any party may file a praecipe with the
       prothonotary of any court in which such an inoperative notice or
       petition is filed or docketed and the prothonotary shall note on the
       docket that such notice or petition has been stricken under this
       rule. Where a timely order of reconsideration is entered under
       this paragraph, the time for filing a notice of appeal or petition for
       review begins to run anew after the entry of the decision on
       reconsideration, whether or not that decision amounts to a
       reaffirmation of the prior determination of the trial court[.]

Id. (emphasis added).

       Read together, Pa.R.C.P. 1930.2 and Pa.R.A.P. 1701(b)(3) provide that

a notice of appeal becomes inoperative when, during the thirty-day appeal

period, a party “files” a motion for reconsideration and the trial court “files”

an order expressly granting reconsideration of the order that is the subject of

the appeal. If both “filing” conditions are satisfied, the trial court must either



____________________________________________


3 A 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).

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render a reconsidered decision or issue an order for additional testimony

within 120 days after filing the order granting reconsideration.        Pa.R.C.P.

1930.2 (c), (e). If 120 days elapse without a reconsidered decision or order

for additional testimony, the motion for reconsideration is deemed denied, and

the appeal period begins to run from the 121st day. Pa.R.C.P. 1930.2(d).

       The question we first must decide is when the trial court’s “filing” of its

reconsideration order took place under Rule 1930.2(e), as that date

determines here whether the trial court had jurisdiction to reconsider its

September 17, 2015 support order.                The prothonotary received the

reconsideration order on October 15, 2015, but did not docket it until October

28, 2015. The last day to file an appeal from the September 17, 2015 order

was October 17, 2015, thereby placing the “filing” of the reconsideration order

within and the docketing of the reconsideration order outside of the 30-day

appeal period.

       We find guidance from other procedural cases and conclude that an

order is “filed” for purposes of Rule 1930.2(e) when the prothonotary receives

it from the trial court, regardless of when the prothonotary dockets the trial

court’s order.4

____________________________________________


4 We note the trial court docket as well does not indicate that the prothonotary
sent Pa.R.C.P. 236 notice of the instant reconsideration order to the parties.
In some actions, the failure to send Rule 236 notice prevents the appeal period
from running. See Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa.
1999) (order is not appealable until it is entered on docket with Rule 236



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       In Griffin v. Central Sprinkler Corp., 823 A.2d 191, 197 (Pa. Super.

2003), we addressed whether, under Pa.R.C.P. 205.1, the appellant’s praecipe

for writ of summons to the Montgomery County prothonotary’s office dated

April 13, 1999, but not time-stamped until April 20, 1999—the day after the

statute of limitations expired—properly permitted the granting of summary

judgment on the basis the action was time-barred. Rule 205.1 provides in

relevant part that any legal paper sent by mail shall not be deemed filed until

received by the appropriate officer. In Griffin, the prothonotary’s first deputy

testified that the office had been backed up, and that the time-stamp on the

praecipe did not necessarily indicate that the praecipe had arrived on that

date. Based on a survey of case law, we held that the trial court erred in

concluding the statute of limitations expired because the appellant’s praecipe

was    not   filed   until   it   was   time-stamped.   We   cited   with   approval

Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa. Super. 2001), where

we held the act of “filing” focuses as much upon the act of a litigant placing

the document in the hands of the appropriate ministerial office as the act of

docketing receipt of the document. We further endorsed the rationale that



____________________________________________


notice that appropriate notice has been given; fact that parties may have
received notice of order does not alter the formal date of its entry and
associated commencement of period allowed for appeal). In support actions,
however, “the entry of a support order need not contain a Rule 236 docket
entry that notice has been sent.” Murphy v. Murphy, 988 A.2d 703, 709
(Pa. Super. 2010). Therefore, the lack of Rule 236 notice did not prevent the
120-day reconsideration period from running in the present case. Id.

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receipt constitutes filing in the ordinary civil case, because an appellant has

no control over delays between a court clerk’s receipt and formal filing of a

notice. Id. (citing Houston v. Lack, 487 U.S. 266, 273-74 (1988)); see also

Bonawits v. Bonawits, 907 A.2d 611 (Pa. Super. 2006) (under section

3323(g)(2) of Divorce Code, both parties have “filed” affidavits of consent

when accepted by the divorce master and not the prothonotary). Since both

Rule 1930.2(e) and Rule 205.1 focus upon when a document is “filed,” we

perceive no reason why our holding in Griffin should not also be applicable

here. Had our Supreme Court intended Rule 1930.2(e) to mean that orders

granting reconsideration are effective only if docketed within the 30-day

appeal period, it would have provided as much, as it purposely refers to

docketing when that is what it intends. See, e.g., Pa.R.C.P. 236 (prothonotary

shall note in the docket the giving of notice); Pa.R.C.P. 1307(c) (if no appeal

is taken within 30 days after entry of the award on the docket,

prothonotary upon praecipe shall enter judgment on award).

      Our interpretation of “filed” under Rule 1930.2(e) is also consonant with

our Pennsylvania Rules of Appellate Procedure that deem a notice of appeal

filed upon receipt by the lower court clerk. Commonwealth v. Williams,

106 A.3d 583, 589-90 (Pa. 2014) (notice of appeal timely filed under Pa.R.A.P.

905(a)(3) on date received by clerk of court, even though clerk refused to

accept or time-stamp notice due to alleged formal defects).




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       With these precepts in mind, we return to the present case. The trial

court entered its original order on September 17, 2015 and entered its

reconsideration order on October 15, 2015.            On October 15, 2015, the

prothonotary received the trial court’s reconsideration order, the same day it

was signed by the trial court, a fact shown by the prothonotary’s time-stamp

of October 15, 2015 on the reconsideration order. The deadline for entering

a reconsidered decision or ordering additional testimony became February 12,

2016, the 120th day after the date of filing.5 The trial court, however, did not

enter any order by this date, so the motion for reconsideration was deemed

denied, and the appeal period began to run again on the following weekday,

Monday, February 15, 2016.             Pa.R.C.P. 1930.2(d).   The trial court lost

jurisdiction as of February 15, 2016, when the appeal period began running

again.6 Id. Consequently, the trial court’s May 26, 2016 order increasing

Father’s support obligations was a nullity.

       In reaching this decision, we find support in Weinzetl v. Weinzetl, 681

A.2d 813 (Pa. Super. 1996).           In Weinzetl, (1) the trial court entered an

equitable distribution order on April 22, 1994 that “was docketed April 25,



____________________________________________


5 Mother’s appeal to this Court on October 16, 2015 did not toll the 120-day
reconsideration period, because the filing of the reconsideration order on
October 15, 2015 rendered the appeal “inoperative.” Pa.R.A.P. 1701(b)(3).

6The appeal period expired on March 16, 2016, without any new appeal by
Mother.


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1994,” and (2) the trial court granted Wife’s timely petition for reconsideration

on May 18, 1994 and “docketed” this order on May 24, 1994. Id. at 813-14.

No further action took place until Wife’s attorney contacted the court one year

later.    On May 25, 1995, the court issued a reconsidered order, and Wife

subsequently appealed to this Court. This Court vacated the May 25, 1995

order and reinstated the April 25, 1994 order, reasoning that

         since the court granted reconsideration on May 24, 1994, it had
         120 days in which to act and either direct that additional testimony
         be taken or issue a new reconsidered order. Neither action was
         taken within 120 days and on the 121st day, or September 22,
         1994, the motion was deemed denied . . . Th[e] 1995 order, which
         was rendered well beyond the 120 day time period in which the
         court is to act, is a nullity[.]

Id., 681 A.2d at 814 (emphasis added). The trial court in Weinzetl argued

that it was inequitable for Rule 1930.2 to apply because the delay was the

product of error by judicial staff. This Court disagreed:

         Whether because of clerical error, as in this case, or
         inattentiveness by the court, Rule 1930.2 applies and directs that
         where a reconsidered decision is not rendered within 120 days,
         the reconsideration motion is deemed denied. Wife, if she so
         desired, should have appealed that “denial” within 30 days. It
         was not appropriate for Wife to wait beyond the 120 day period
         and then contact the court regarding a decision. When no decision
         was rendered by the 121st day, the proper course was for Wife to
         file an appeal. As stated in the explanatory comment: “If the court
         grants the motion for reconsideration, it has 120 days in which to
         enter a reconsidered decision. The appeal period begins to run
         anew upon the entry of the reconsidered decision, or on the 121st
         day if the decision is not entered within the 120 day period.” . . .
         Wife’s inaction in failing to take an appeal following the 121st day
         cannot be excused regardless of the reason why a new
         reconsidered order was not entered on the docket before that day.
         Wife had the ability to view the docket to see if an order had been


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       entered. When none was filed, a direct appeal should have been
       taken.

Id. at 815.

       This Court correctly reasoned in Weinzetl that the trial court lacked

jurisdiction under Rule 1930.2 to enter a reconsidered decision subsequent to

the 120-day reconsideration period.              To that extent, Weinzetl provides

support for our decision today that the trial court lacked jurisdiction to enter

the May 26, 2016 support order.7

       Accordingly, we agree with Father that the trial court lacked authority

to enter a reconsidered order after February 12, 2016. The May 26, 2016

order is a nullity. Thus, we vacate the May 26, 2016 order and reinstate the

September 17, 2015 support order.8

       May 26, 2015 order vacated.             September 17, 2015 order reinstated.

Jurisdiction relinquished.




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7 We note in passing that the trial court in Weinzetl issued its reconsideration
order on May 18, 1994, but it was not docketed until May 24, 1994. The
opinion does not indicate when the order was received by the prothonotary’s
office.    The Weinzetl court held that since the trial court granted
reconsideration on May 24, 1994, it had 120 days to act. It made no
distinction between the date the order was issued and when it was docketed,
presumably because those facts did not form the basis of the issue for
disposition by this Court. Even so, the result in Weinzetl clearly was correct,
because regardless of the actual date of issuance or docketing, the 120-day
period expired before the trial court filed its reconsidered decision.

8 Because Father’s first argument is dispositive, we need not address his
second and third arguments.

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        Judge Dubow did not participate in the consideration or decision of this

case.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/18




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