J-A09004-19

                                   2019 PA Super 227

    CHRISTOPHER YOUNG,                         :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
    S. B. CONRAD, INC., SHELLY                 :
    ENTERPRISES US LBM, LLC, J & S             :   No. 2501 EDA 2018
    ELECTRICAL CONTRACTORS, INC.               :
    AND WILLIAM C. FISCHER                     :
    PLUMBING & HEATING, INC.                   :
                                               :
                v.                             :
                                               :
                                               :
    RRR CONTRACTORS, INC.                      :


           Appeal from the Judgment Entered, September 20, 2018,
             in the Court of Common Pleas of Philadelphia County,
            Civil Division at No(s): 01029 December Term, 2015.


BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

OPINION BY KUNSELMAN, J.:                                 FILED JULY 25, 2019

                                  I.     Introduction

        In this negligence action, Plaintiff Christopher Young appeals from an

order dismissing his claim against Defendant S.B. Conrad, Inc. Prior to seating

a jury, the trial court determined Mr. Young was a statutory employee of S.B.

Conrad under the Pennsylvania Workman’s Compensation Act1 (“the Workers’

Comp. Act”), as a matter of law. Thus, it held that S.B. Conrad was immune

from Mr. Young’s lawsuit and granted summary judgment in favor of S.B.


____________________________________________


1   77 P.S. §§ 1-2710.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A09004-19



Conrad on August 21, 2017. However, the trial court memorialized its order

on a trial worksheet that purported to enter a compulsory non-suit rather than

summary judgment.

      Instead of immediately appealing as he could have, Mr. Young relied on

the trial court’s mischaracterization of its order as an entry of non-suit and

filed a post-trial motion to remove it. Because his reliance was reasonable,

we have jurisdiction over his appeal, even though it came in nearly a year

after the grant of summary judgment. We find, however, that Mr. Young failed

to preserve any of his appellate issues. Thus, we affirm.

                II.   Factual and Procedural Background

      The case’s facts are largely irrelevant, because our disposition rests on

procedural grounds. Briefly, Mr. Young alleges he was an employee of RRR

Contractors. He also claims S.B. Conrad, Inc. contracted with RRR Contractors

for a building project. RRR Contractors assigned Mr. Young to work on that

project. In the course of his duties, Mr. Young fell two stories, suffered severe

and permanent injuries, and sued.

      The week before trial, S.B. Conrad filed a motion for non-suit, claiming

to be Mr. Young’s statutory employer under the Workers’ Comp. Act, and it

asked the trial court to bifurcate that issue from the rest of the case. On

August 21, 2017, the trial court granted its motion, which the trial court said

it was treating as a motion for summary judgment. As the court explained

without objection from Mr. Young, “I think the preliminary step is to rule on

the submission of statutory employment, which I am looking at it as a motion

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for summary judgement, although I filed it as a pre-trial motion for

bifurcation.” N.T., 8/21/17, at 3.

      There was a lengthy oral argument, where both sides treated the

employment-status question as one of law for the court. See id. at 3-19.

Indeed, Mr. Young’s attorney conceded that the issue was one of law:

         THE COURT: I believe this is a decision, not something
         that needed to be decided by a jury. That it deals with law.

         PLAINTIFF’S COUNSEL: I agree with that.

Id. at 21.

      After the trial court ruled that Mr. Young was a statutory employee of

S.B. Conrad, plaintiff’s counsel tried, for the first, to interpose a procedural

issue. His discussion with the trial court went as follows:

         PLAINTIFF’S COUNSEL: Your Honor, I just, for the
         record, I need to put this on the record to make sure the
         Superior Court doesn’t say we don’t have a record.

               S.B. Conrad failed to file a Summary Judgment
         Motion, which I would have then had 30 days to produce
         evidence as to why they have not met their burden. On
         Friday and today, S.B. Conrad renewed the legal argument
         that they are immune, not in the form of Summary
         Judgment, but in a motion in limine. I then had the
         afternoon of Friday to supply the Court with whatever –

         THE COURT: And you had all weekend.

         PLAINTIFF’S COUNSEL: I apologize.        I thought you
         wanted me to respond by the end of the day Friday.

         THE COURT: I never directed you to do that. I asked this
         question in the conference room, I said: Do I have
         everything in front of me that I need to make a ruling? And
         you specifically stated that I did.


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J-A09004-19


               You said: [All the evidence that I needed was in the
         documents that you] provided and based on that
         representation I came in this morning with the
         understanding that all sides were on the same page. That
         based on the writing I was given, that I could proceed
         forward.

                [Defense counsel] said at that time, if you come in
         Court on Monday morning and you think you need more, I
         will have people from S.B. Conrad to supplement anything
         that I have if you feel that need to.

Id. at 20 (emphasis in original).

      Plaintiff’s counsel did not contest the trial court’s recollection of the off-

the-record conversation in the conference room, place an objection on the

record, or cite any procedural rule during the August 21, 2017 argument.

      The trial court memorialized its decision in a form order, headed “Trial

Work Sheet,” on which the court placed an “X” next to “Non-Suit entered.”

August 21, 2017 Order at 1. Six days after receiving the notice of non-suit,

Mr. Young moved for post-trial relief, raising two claims of procedural error

for the first time. Nearly a year later, the trial court denied his motion.

      Mr. Young appealed from that order twelve months after S.B. Conrad

received summary judgment. The prothonotary then entered judgment based

on the order denying Mr. Young’s post-trial motion.

                                 III. Analysis

A.    Timeliness of the Appeal.

      Mr. Young waited almost a year to appeal an order that, by rule, was a

grant of summary judgment. We pause to consider our jurisdiction.




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      “Tardy filings go to the jurisdiction of the tribunal to entertain a cause,

and thus cannot be lightly dismissed. The establishment of jurisdiction is of

equal importance as the establishment of a meritorious claim for relief.”

Robinson v. Pennsylvania Bd. of Prob. & Parole, 582 A.2d 857, 860 (Pa.

1990).   “Although neither party has challenged our jurisdiction, we may

always consider that question on our own motion.” Kapcsos v. Benshoff,

194 A.3d 139, 141 (Pa. Super. 2018) (en banc). A jurisdictional issue presents

us with “a question of law; the appellate standard of review is de novo, and

the scope of review plenary.” Id.

      Pennsylvania Rule of Appellate Procedure 903(a) mandates that “the

notice of appeal . . . shall be filed within 30 days after the entry of the order

from which the appeal is taken.” This Court “is without jurisdiction to excuse

failure to file a timely notice of appeal, as [the] 30-day period for appeal must

be strictly construed; [an] untimely appeal divests the Superior Court of

jurisdiction.” State Farm Fire Co. v. Craley ex rel. Estate of Craley, 784

A.2d 781, 785 n.5 (Pa. Super. 2001), reversed on other grounds sub nom,

Motorists Mutual Ins. Co. v. Pinkerton, 830 A.2d 958 (Pa. 2003).

      In Rivera v. Home Depot USA, Inc., 832 A.2d 487 (Pa. Super. 2003),

this Court opined that, when the trial court and the parties should have treated

a pre-trial motion as one for summary judgment rather than for non-suit, the

losing party’s fling of post-trial motions should not be held against it.    We

explained that a:




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         problem occurs when the pretrial ruling is finally determined
         shortly before trial and the parties are not careful in how
         they proceed. Essentially, [the parties] neither go through
         the formalities of a stipulated trial and have the trial judge
         grant a compulsory nonsuit, nor file an oral nunc pro tunc
         summary judgment motion and have that motion granted.

                Here, since no testimony was taken, Home Depot’s
         motion should have been characterized as a nunc pro
         tunc summary judgment motion, and the trial court’s ruling
         should have been to grant summary judgment, not a
         compulsory nonsuit. Lewis v. United Hospitals, 692 A.2d
         1055 (Pa. 1997) . . . However, we do not believe the Riveras’
         filing of a motion to strike the nonsuit and waiting until that
         motion was denied before appealing was improper and
         defeats their right of appeal.

                           *     *      *     *      *

                It is true that the trial court’s ruling should have been
         considered a summary judgment ruling; however, it was
         called the grant of a compulsory nonsuit. Under Pa.R.C.P.
         227.1(3), the appropriate procedure after the entry of a
         compulsory nonsuit is to file a written motion for post-trial
         relief. That is what the Riveras did in this case.

               Although the Riveras could have appealed directly
         because the “nonsuit” ruling was improper, it was proper for
         them to follow the procedure allowing the trial court to
         correct the error. Once that motion was ruled upon, the
         Riveras had 30 days to file an appeal, which they did.
         Therefore, because the appeal was timely filed, we deny
         Home Depot’s motion to quash.

Rivera, 832 A.2d at 490-491.

      Like the Riveras, Mr. Young could have appealed directly from the order

purporting to grant a non-suit, because it was actually a grant of summary

judgment under Lewis, supra. But, because the trial court’s terminology in

its order erroneously dubbed the judgment an entry of non-suit, Mr. Young

was likewise free to give the trial court an opportunity to correct any possible


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J-A09004-19



errors through a post-trial motion. By giving the trial court that opportunity,

under Rivera, Mr. Young tolled the appeal-filing timeframe until the trial court

disposed of his post-trial motion.2



____________________________________________


2 But, see also Overnite Transp. Co. v. Teamsters Local 107, 779 A.2d
533, (Pa. Super. 2001), reversed sub nom., Overnite Transp. Co. v. Local
Union No. 107, 786 A.2d 173 (Pa. 2001) (holding that, like Rivera v. Home
Depot USA, Inc., 832 A.2d 487 (Pa. Super. 2003), when an appellant
erroneously files post-trial motions and the trial court erroneously entertains
them, this Court “will not penalize a party when its procedural errors are
shared equally by those of the trial court . . . Thus, because the trial court
treated the post-trial motions as proper under Pa.R.C.P. 227.1, we will accept
that treatment in this instance and treat the appeal as properly filed within 30
days of the denial of post–trial motions.”). Overnite Transport Co. petitioned
for allowance of appeal, and the Supreme Court of Pennsylvania summarily
reversed this Court’s assertion of jurisdiction.

       The High Court explained, that “[t]he appeal below was untimely filed,
and there was no showing of fraud or a breakdown in the court’s operation to
permit entertaining the appeal. The Superior Court lacked jurisdiction over
the appeal.” Overnite Transp. II, 786 A.2d 173. We perceive a potential
conflict between Overnite Transp. II and Rivera.

      However, the procedural posture of Rivera aligns with the case at bar
more closely than Overnite Transp. II, and this Court decided Rivera after
Overnite Transp. II. Even if Rivera – which made no mention of Overnite
Transp. II – was in error, this panel may not disregard it. See, e.g.,
Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1064 n.19 (Pa. Super.
2015) (noting that “it is beyond the power of a Superior Court panel to
overrule a prior decision of the Superior Court, except in circumstances where
intervening authority by our Supreme Court calls into question a previous
decision of this Court.”) Overnite Transp. II pre-dates Rivera and cannot
qualify as an intervening authority.       Accordingly, if the Rivera Court
committed error, this panel is incapable of correcting it.




                                           -7-
J-A09004-19



       We conclude that Rivera binds us. Because Mr. Young appealed within

30 days of the denial of post-trial motion, his appeal is timely.



B.     The Jurisdiction of This Court and the Commonwealth Court

       Also, this Court issued Mr. Young a rule to show cause why we should

not transfer his appeal to the Commonwealth Court of Pennsylvania.          See

Superior Court Order, 9/14/18, at 1. We asked whether appellate jurisdiction

rests in the Commonwealth Court,3 as this appeal may involve that court’s

“special expertise in interpretation, application, and enforcement of the

Workers’ Compensation Act.” Id. at 1 (citing 42 Pa.C.S.A. § 742 and Wilson

v. Travelers Casualty and Surety Co., 88 A.3d 237 (Pa. Cmwlth. 2013)).

       The Pennsylvania Unified Judicial System is unique from other American

appellate-court systems, because the others are based, more or less, on

territorial jurisdiction.4 In Pennsylvania, appellate jurisdiction focuses on the

subject matter and type of parties involved in the case. Entire classes of direct

appeals are within the exclusive, subject-matter jurisdiction of either the

Commonwealth Court or the Supreme Court of Pennsylvania, regardless of

where in Pennsylvania a case arose. See 42 Pa.C.S.A. §§ 722, 723, 725, 762,

763, 764.     All other direct appeals fall within the residual, subject-matter
____________________________________________


3 We discussed our scope and standard of review for jurisdictional questions
in the previous section. Therefore, we need not reiterate them here.

4 In other systems, parties appeal to the intermediate appellate court having
jurisdiction over the place where the original case or administrative proceeding
occurred.

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J-A09004-19



jurisdiction of the Superior Court. See 42 Pa.C.S.A. § 724 (vesting appellate

jurisdiction over all unspecified subject matters in this Court).

      Replying to our rule to explain why Commonwealth Court should not

decide this appeal, Mr. Young cites a list of cases where this Court interpreted

the Workers’ Comp. Act.      See Young’s Response to Rule to Show Cause,

9/20/28, at 3-5. We find those cases to be more fitting than Wilson, which

had a lengthy litigation history. That case originated in the Bureau of Workers’

Compensation with two, related petitions seeking compensation on behalf of

Claimant Wilson’s late father. The matter reached the Commonwealth Court,

which enforced the Bureau’s order directing the employer to provide benefits.

But the employer refused to confer those benefits upon Ms. Wilson, so she

filed a praecipe for judgment based upon the Commonwealth Court’s decision.

      The prothonotary complied. The employer then petitioned the court of

common pleas to strike that judgment. The trial court did, and Ms. Wilson

appealed to this Court. We transferred her appeal to Commonwealth Court

on several grounds, and Commonwealth Court denied her request to return

the matter to us.

      Commonwealth Court explained that the issues on appeal concerned its

previous decision and administrative law because of:

         the underlying fatal-benefits award . . . Further, the issues
         . . . arise out of the ongoing workers’ compensation
         proceedings involving the same parties’ rights to fatal-claim
         benefits and are directly related to the issues disposed of in
         this Court’s Memorandum Decision Ann Wilson and
         James Wilson, Deceased v. Traveler's Insurance
         Company and Allied Signal, Inc., 2008 WL 9406439 (Pa.

                                      -9-
J-A09004-19


         Cmwlth. 2008). The issues also involve [Commonwealth]
         Court’s review of the scope of [an administrative law
         judge’s] award of fatal-claim benefits, and the interpretation
         of the scope of [Commonwealth] Court’s July 8, 2008,
         Decision and Order.

               Finally, the underlying principles of workers’
         compensation law are traditionally within [Commonwealth]
         Court’s province. The appeal presents issues requiring
         [Commonwealth] Court’s special expertise in the
         interpretation, application and enforcement of . . . the Act.

Wilson, 88 A.3d at 245 (some citations omitted). Therefore, Commonwealth

Court agreed with us; it had exclusive, subject-matter, appellate jurisdiction

over Ms. Wilson’s case.

      In the instant appeal, unlike Wilson, no party claims there was litigation

in the Bureau of Workers’ Compensation. Thus, there is no prior adjudication

from Commonwealth Court at issue. As such, the first two concerns found in

Wilson are absent here.

      This leaves Wilson’s final point – i.e., that “the underlying principles of

workers’ compensation law are traditionally within [Commonwealth] Court’s

province.” Id. While this is generally true because most Workers’ Comp. Act

appeals are petitions for review filed in the Commonwealth Court, the Superior

Court does not simply transfer any case involving the Workers’ Comp. Act.

This is especially so where, as here, the Workers’ Comp. Act is a defense in a

tort action between private litigants. See, e.g., Gardner v. MIA Products

Co., 189 A.3d 441 (Pa. Super. 2018) (reviewing a trial court’s grant of

summary judgment in favor of an employer who successfully asserted its

immunity from a lawsuit based on 77 P.S. § 491(a) (“borrowed employee”));

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J-A09004-19



and Doman v. Atlas America, Inc., 150 A.3d 103 (Pa. Super. 2016)

(concluding that an employer was immune from suit under the statutory-

employer section of the Workers’ Comp. Act).

      Moreover, the two issues in Mr. Young’s brief do not require us to apply

the Workers’ Comp. Act. See Young’s Brief at 5. Instead, they assert error

under the Pennsylvania Rules of Civil Procedure, over which Commonwealth

Court and this Court have coequal expertise. See id. We therefore conclude

that none of the subject-matter jurisdictional concerns of Wilson are present.

      Thus, there is no reason for Commonwealth Court to exercise exclusive

jurisdiction over this appeal. It is therefore within our residual, subject-matter

jurisdiction under 42 Pa.C.S.A. § 745.



C.    Preservation of Appellate Issues

      We turn now to the issues in Mr. Young’s brief. They are:

         1.    Did the trial court err by granting a nonsuit before trial
               without allowing Plaintiff to present evidence?

         2.    Did the trial court err by entering a nonsuit (a) without
               stating that its Order was the functional equivalent of
               an Order granting a Motion for Summary Judgment,
               and (b) without specifying the bases for its decision to
               grant summary judgment in its Opinion, thereby
               precluding this Court from meaningfully reviewing the
               trial court's decision?

Young’s Brief at 5.

      As mentioned above, Mr. Young did not raise either of these issues to

the trial court until after a long argument on the merits of S.B. Conrad’s


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J-A09004-19



motion for non-suit.5 During that hearing, Mr. Young’s counsel never cited a

rule of procedure that he believed the trial court was misapplying. Instead,

he waited until the court ruled in favor of S.B. Conrad to bring up procedural

matters. See N.T., 8/21/17, at 20.

       S.B. Conrad contends failure to interpose a timely objection is waiver.

It argues that Mr. Young “has waived any objection thereto by agreeing that

the matter was a question of law for the Court.” S.B. Conrad’s Brief at 7.

       Additionally, we note that Mr. Young did not comply with Pennsylvania

Rule of Appellate Procedure 2119(e). That rule provides that an appellant’s

“argument must set forth, in immediate connection therewith or in a footnote

thereto, either a specific cross-reference to the page or pages of the statement

of the case which set forth the information relating thereto as required by

Pa.R.A.P. 2117(c), or substantially the same information.” Pa.R.A.P. 2119(e).

Under Pa.R.A.P. 2117(c), the appellant must include in his statement of the

case how and where in the record he raised waivable issues in the trial court.

       Our appellate courts have long held that an appellate who does not

follow Pa.R.A.P. 2117(c) and Pa.R.A.P. 2119(e) waives the related issues due

to the defects in his brief. “[W]e deny relief on the ground that the issue is

waived, because Appellant has failed to demonstrate where in the record he

preserved     this    claim    and     our     independent   review   discloses   no

contemporaneous objection. See Pa.R.A.P. 2119(e) (requiring an appellant
____________________________________________


5Also, the trial court provided specific bases for deeming Mr. Young a statutory
employee of S.B. Conrad when he fell. See N.T., 8/21/17, at 17-19.

                                          - 12 -
J-A09004-19



to identify where in the record he preserved an issue for appellate review).”

Commonwealth v. Yandamuri, 159 A.3d 503, 528 n.23 (Pa. 2017). See

also, Victoria Gardens Condo. Ass'n v. Kennett Twp. of Chester Cty.,

23 A.3d 1098, 1107 (Pa. Cmwlth. 2011) (holding that, when an appellant “fails

to direct this Court to where this theory of recovery was raised before the trial

court as required by Rules 2117(c) and 2119(e) of the Pennsylvania Rules of

Appellate Procedure,” the issue was waived).

      Mr. Young’s brief contains no references to places of preservation for

either issue he raises on appeal. And our independent review of the record

reveals none. We therefore agree with S.B. Conrad that Mr. Young made no

timely objections, based upon the Pennsylvania Rules of Civil Procedure, in

the trial court. Waiver results.

      As the trial judge reminded plaintiff’s counsel:

         I asked this question in the conference room, I said: Do I
         have everything in front of me that I need to make a ruling?
         And you specifically stated that I did.

               You said: [All the evidence that I needed was in the
         documents that you] provided and based on that
         representation I came in this morning with the
         understanding that all sides were on the same page. That
         based on the writing I was given, that I could proceed
         forward.

                [Defense counsel] said at that time, if you come in
         Court on Monday morning and you think you need more, I
         will have people from S.B. Conrad to supplement anything
         that I have if you feel that need to.




                                     - 13 -
J-A09004-19



N.T., 8/21/17, at 20 (emphasis in original).        Plaintiff’s counsel offered no

disagreement with the trial court’s recitation of events from the previous

week.

        “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). Raising an issue for the first

in a post-trial motion is insufficient to satisfy the appellate rules. “[P]ost-trial

relief may not be granted unless the grounds therefor, (1) if then available,

were raised in pre-trial proceedings or by motion, objection, point for charge,

request for findings of fact or conclusions of law, offer of proof or other

appropriate method at trial.” Pa.R.Civ.P. 227.1.

        Here, S.B. Conrad presented the trial court and Mr. Young with a motion

for non-suit prior to the start of trial. However, under Pennsylvania Rule of

Civil Procedure 230.1(c) that motion was clearly premature, because the trial

court may only “enter a nonsuit . . . at the close of the plaintiff’s case on

liability . . . .”   Thus, the motion’s title put Mr. Young on notice that any

attempt by S.B. Conrad to have the court dispose of it pre-trial would be

procedurally incorrect.

        Instead of objecting on those grounds, Mr. Young consented to the trial

court ruling upon the motion. Thus, he did not bring his claims of procedural

error to the court’s attention until after he had lost the motion.

        The rules of procedure are not a fallback position after one losses on the

merits. If Mr. Young thought the trial court was misapplying the procedural

rules, he had an obligation under those rules to bring it to the court’s attention

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prior to agreeing that the court could decide the motion pre-trial, briefing the

trial court on it, arguing the matter at length in open court, and waiting for

the trial court to rule on the motion’s merits.6

       Accordingly, we conclude that any procedural errors that occurred below

stemmed from Mr. Young’s willful acquiescence to them before and during the

August 21, 2017 hearing. For all of the foregoing reasons, he has waived his

claims of procedural error.

       Judgment affirmed.

       Judge Pellegrini joins the opinion.

       Judge Murray concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/19




____________________________________________


6 Finally, we note Mr. Young never claims the grant of judgment as a matter
of law to S.B. Conrad was substantively erroneous. Nor does he indicate what
evidence he would reply upon to defeat summary judgment or that he would
adduce any additional evidence to supplement the record, were we to remand
this case on procedural grounds. Thus, even had we reached the merits of
Mr. Young’s issues, it is unlikely we would have found harmful error.

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