J-A12012-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STANLEY AND SYLVIA HALLMAN,                   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellants

                   v.

EQT PRODUCTION CO. AND PHOENIX
RESOURCES, INC.,

                        Appellee                  No. 1138 MDA 2014


               Appeal from the Order Entered June 12, 2014
              In the Court of Common Pleas of Tioga County
                   Civil Division at No(s): 489 CV 2013


BEFORE: BOWES, DONOHUE AND ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 07, 2015

     Stanley and Sylvia Hallman appeal from the June 12, 2014 order

denying their request to file an appeal nunc pro tunc. After careful review,

we affirm.

     The Hallmans are the surface owners of approximately 335 acres of

property in Morris Township, Tioga County, Pennsylvania. Appellee Phoenix

Resources, Inc. (“Phoenix Resources”) owns the oil and gas rights to the

property. On December 30, 2009, Phoenix Resources leased the exclusive

right to extract oil and gas from under the property to the Appellee EQT

Production Company (“EQT”).

     On October 4, 2012, the Pennsylvania Department of Environmental

Protection (“DEP”) granted EQT an “Erosion and Sediment Control” general
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permit to construct a gas well pad with ten (10) wells, drill pits, an access

drive, and a four and one-half acre impoundment holding 10,000,000 gallons

of water for the purpose of fracking both on and off the property.           The

Hallmans   pled,   based   on   the   issuance   of   this   permit   and   EQT’s

representation it was “uncertain how long the surface owned by the

[Hallmans] will be disturbed[,]” that it believed that EQT intended to move

forward with the fracking. Complaint, ¶11.

     On June 17, 2013, the Hallmans filed a complaint against EQT seeking

a declaratory judgment and injunctive relief to restrain EQT’s proposed use,

as well as damages for trespass. They alleged that the above-described use

of the property was not permitted under the terms of the lease between

Phoenix and EQT.      Specifically, they argued that EQT should not be

permitted to construct the impoundment on the property and that it should

be required to change the location of its proposed road.

     In response to preliminary objections alleging, inter alia, failure to join

a necessary party, the Hallmans amended their complaint on August 6,

2013, to join Phoenix Resources as a defendant. EQT again filed preliminary

objections to the Hallmans’ amended complaint seeking to dismiss the

declaratory judgment count and request for injunctive relief for failure to

exercise or exhaust a statutory remedy, ripeness, and standing.               On

November 5, 2013, the trial court sustained EQT’s preliminary objections on

the basis of ripeness and justiciability and dismissed the amended complaint

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as to EQT.      The trial court subsequently denied the Hallmans’ motion for

clarification and/or reconsideration of the order granting EQT’s preliminary

objections.

         On November 25, 2013, Phoenix Resources filed preliminary objections

that were identical to those filed earlier by EQT and sustained by the trial

court.     Argument was held on the preliminary objections on January 22,

2014.      By order of January 31, 2014, the trial court dismissed the

declaratory judgment and injunction counts of the Hallmans’ amended

complaint as to Phoenix Resources. In its order, the trial court stated that

the amended complaint failed to state an actual, justiciable controversy for

which declaratory relief could be granted and, that the matter was not ripe

for consideration. The record substantiates that the order was docketed as

mailed to all counsel of record on January 31, 2014.      Phoenix Resources

received a copy of the order.

         No appeal was filed within the thirty-day period. On March 24, 2014,

Bethany Schwarz, the legal assistant for the Hallmans’ counsel, contacted

the Prothonotary to ascertain whether there had been any activity on the

pending preliminary objections. Upon being advised of an order, she asked

for and received a copy via email. Counsel for the Hallmans promptly filed a

motion seeking leave to appeal nunc pro tunc, representing therein that he

had not received a copy of the January 31, 2014 order before the appeal

period had expired.     Counsel and Ms. Schwarz submitted sworn affidavits

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attesting to their non-receipt of the order and describing the practice and

procedure in effect in counsel’s office for reviewing the mail.

      The trial court held a hearing on the motion on June 13, 2014. The

Hallmans’ counsel, Mr. Richard Druby, an attorney with twenty-three years’

experience, testified that his office has a policy and procedure for handling

mail. His assistant, Bethany Schwarz, opens the mail, reviews it, and diaries

any important dates. The mail is then scanned into the office’s document

management system. The mail is given to attorney Druby, who reviews it,

double checks the dates, and takes any action necessary. N.T., 6/13/14, at

3-4. The documents are placed in the client’s files. Attorney Druby testified

that his office did not receive a copy of the order since it was not located in

the system, the client’s file, his office or Ms. Schwarz’s office. Id. at 4.

      Ms. Schwarz corroborated Mr. Druby’s testimony as it relates to the

office’s procedure for handling mail, and the role she plays in it.            She

testified that she had never received or even seen that particular order.

Furthermore, she confirmed that she participated in the office and computer

search that failed to yield the order. Id. at 8-9.

      Based on the evidence presented, the trial court denied the request to

file an appeal nunc pro tunc, finding counsel’s claim of non-receipt “self-

serving and not credible.”    Trial Court Opinion, 11/14/14, at 4.      The trial

court added that the Hallmans would not be prejudiced by the decision




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because the “matter is premature.” Id. The Hallmans appealed and raise

the following question:

             Whether the trial court committed an error of law and
      abused its discretion in denying the Plaintiff’s motion to file
      appeal nunc pro tunc and should have permitted the Hallmans to
      appeal the trial court’s granting of the preliminary objections of
      both EQT and Phoenix Resources because the uncontested facts
      presented to the trial court proved that Plaintiff’s counsel’s
      failure to file the appeal timely was due to non-negligent
      circumstances?

Appellant’s brief at 4.

      The standard of review applicable to the denial of a request to permit

an appeal nunc pro tunc is “whether the trial court abused its discretion.”

Freeman v. Bonner, 761 A.2d 1193, 1194 (Pa.Super. 2000) (quoting

Union Electric Corporation 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 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.

      The Hallmans bear the burden of showing that the trial court abused

its discretion in denying leave to file an appeal nunc pro tunc. “Generally,

an appeal nunc pro tunc may be allowed when a delay in filing the appeal is

caused by extraordinary circumstances involving ‘fraud or some breakdown

in the court’s operation through a default of its officers.’”          Cook v.

Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996)

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(citing Bass v. Commonwealth Bureau of Corrections et al., 401 A.2d

1133, 1135 (Pa. 1979)). In addition, nunc pro tunc relief may be granted

“where the appellant demonstrates that (1) his 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) he filed the notice of appeal shortly

after the expiration date; and (3) the appellee was not prejudiced by the

delay.” Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075 (Pa. 2004)

(quoting Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001)).

      First, the Hallmans rely upon our decision in Fischer v. UPMC

Northwest, 34 A.3d 115 (Pa.Super. 2011), in support of their contention

that their failure to file a timely notice of appeal was excused due to a

breakdown in the court’s operations. They argue that the docket entry alone

was insufficient to give rise to a presumption of mailing. EQT counters that

Fischer is factually distinguishable as the Prothonotary therein failed to give

Rule 236 notice of the order, instead relying upon the court reporter to do

so. Furthermore, the Prothonotary did not enter the order on the docket for

twenty-nine days.     Herein, the Prothonotary complied with Rule 236,

docketed the January 28, 2014 order on January 31, 2014, and noted on the

docket that notice was sent to counsel of record.

      Cases involving a breakdown in court operations often involve a failure

on the part of the Prothonotary or court to fulfill its ministerial duties.

Rothstein, supra at 1075. Had the Prothonotary failed to docket and send

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notice of the order, this could be viewed as a breakdown in court operations.

Such was not the case herein. As our High Court stated in Nixon v. Nixon,

198 A. 154 (Pa. 1938), a record that reveals that the Prothonotary’s office

sent the required notice is sufficient to raise a presumption of mailing. On

the record herein, the trial court found insufficient evidence to support a

claim of a breakdown in the court’s operations, and we agree.

       The Hallmans next seek to excuse the late filing under the “non-

negligent circumstances exception” applied in Bass v. Commonwealth,

401 A.2d 1133 (Pa. 1979). In Bass, appeal papers had been prepared from

the Commonwealth Court to the Supreme Court and readied for filing on July

7, six days prior to the thirty-day deadline.     The papers were placed in a

folder on the corner of the secretary’s desk. That afternoon, the secretary

became ill, went home, and did not return to work until Monday, July 17. A

petition seeking permission to appeal nunc pro tunc was immediately filed.

       Our High Court recognized that sometimes events occur due to non-

negligent circumstances and concluded that there was no basis to find that

either the attorney or his secretary acted negligently. It granted the petition

for   the   nunc   pro   tunc   appeal,   reasoning   that,   “at   least   in   those

circumstances involving the non-negligent failure to file an appeal, members

of the public should not lose their day in court.” Id. at 1135.




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       The Hallmans also direct our attention to Walker v. Commonwealth

Unemployment Comp. Bd. of Review, 461 A.2d 346 (Pa.Cmwlth. 1983)1

in support of their reliance upon the non-negligent circumstances exception

on the facts herein.         In Walker, the referee ruled adversely on the

claimant’s benefits claim and he untimely appealed to the Board. The Board

remanded to the referee to make a record on the timeliness issue. At the

hearing, Walker testified that he had requested the postal service to forward

his mail to another address but, because it had failed to do so, the referee's

decision and appeal instructions were not received until after the fifteen-day

appeal period expired. The Board dismissed the appeal as untimely because

Walker had not shown that the filing delay was due to negligence or fraud by

the compensation authorities.          The Board did not consider or make any

findings as to whether there were extenuating circumstances that excused

the late filing. On appeal, the Commonwealth Court reversed and remanded

for the Board to make findings of the reasons for the delayed filing, citing

Bass and other decisions for the proposition that an untimely appeal may be

permitted where the untimeliness is not the result of the negligence of the

appellant.


____________________________________________


1
  Although decisions by the Commonwealth Court are not binding on this
Court, we may rely on them if persuaded by their reasoning. In re Brown,
30 A.3d 1200, 1204 n.2 (Pa.Super. 2011).



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         Walker only confirms that the trial court employed the correct

procedure herein in scheduling a hearing to determine whether the failure to

file a timely appeal was the result of the negligence of the Hallmans or their

counsel. It does not hold, as the Hallmans suggest, that failure to receive

notice of the order in time to file a timely appeal is a non-negligent

extenuating circumstance. Furthermore, in Criss v. Wise, supra at 1160,

our Supreme Court revisited the non-negligent circumstances exception and

limited it to unique and compelling cases where the appellant clearly

established that he attempted to file an appeal but was precluded by

unforeseeable and unavoidable events. Id. at 1160. See Bass, supra at

1134 (secretary illness); Perry v. Commonwealth Unemployment Comp.

Bd. of Review, 459 A.2d 1342 (Pa.Cmwlth. 1983) (automobile mechanical

problems); Tony Grande, Inc. v. Commonwealth Unemployment

Comp. Bd. of Review, 455 A.2d. 299 (Pa.Cmwlth. 1995) (hospitalization of

attorney).

         The instant case does not fall within the narrower ambit of Criss, as

there was no attempt to file an appeal that was thwarted by an

unforeseeable event.      In addition, the facts herein implicate the “mailbox

rule.”     The proof of mailing by the Prothonotary raises a rebuttable

presumption that the mailed item was received.        Samaras v. Hartwick,

698 A.2d 71, 73 (Pa.Super. 1997).       Once this presumption is established,

the party alleging that it did not receive the letter has the burden of

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establishing non-receipt. Merely asserting that the letter was not received,

without corroboration, is insufficient to overcome the presumption of receipt.

Id.

      The Hallmans also rely on Donegal Mut. Ins. Co. v. Ins. Dep’t, 719

A.2d 825, 827 (Pa.Cmwlth. 1998), for the proposition that the presumption

of receipt conferred by the mailbox rule is rebutted where evidence

corroborating the claim of lack of receipt is presented.       EQT and Phoenix

counter that Donegal is distinguishable because the evidence of non-receipt

was provided by a “disinterested third-party” who did not have a “stake in

the outcome.” Appellees’ brief at 11. In furtherance of their position, EQT

and Phoenix Resources cite Com., Dep’t of Transp. v. Brayman Const.

Corp.-Bracken Const. Co., 513 A.2d 562, 566 (Pa.Cmwlth. 1986) for the

proposition that “the presumption in the mailbox rule is not nullified by

testimony denying receipt of the item mailed.”           Accord Berkowitz v.

Mayflower Securities, Inc., 317 A.2d 584 (Pa. 1974) (denial of receipt is

not sufficient, in itself, to rebut mailbox rule’s presumption of receipt).

      While testimony provided by a disinterested third party would arguably

strengthen the weight of the evidence, the absence of a third-party witness

herein does not render the testimony legally insufficient. Furthermore, the

Hallmans are not asserting bare allegations of non-receipt as EQT and

Phoenix Resources maintain.        Rather, they have introduced testimonial

evidence of the office policies and procedures for cataloguing incoming mail

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to buttress their claim of non-receipt.       Based upon their search of the

computer system, office, and the clients’ physical file, as well as their own

recollections, both witnesses testified that the order was not received.

      Although the Hallmans offered evidence to rebut the presumption of

receipt, the trial court found that evidence “self-serving and not credible.”

Trial Court Opinion, 11/6/14, at 4. The trial court was free to believe all,

part, or none of the testimony presented. We have long acknowledged that

the "credibility and weight to be given the testimony of any competent

witness is for the trier of fact, for he sees the witnesses and observes the

manner of their testifying."   Glen Alden Coal Co. v. Schuylkill County

Com'rs, 27 A.2d 239, 244 (Pa. 1942).          Those credibility determinations,

where supported, cannot be disturbed on appeal. See Commonwealth v.

Pruitt, 951 A.2d 307, 313 (Pa. 2008) (where issues of credibility and weight

of the evidence are concerned, it is not the function of the appellate court to

substitute its judgment based on a cold record for that of the trial court.).

      Since the trial court neither misapplied the law nor exercised

unreasonable judgment, no relief is due.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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