J-S03031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ANTHONY J. SCIOLLA, JR.                    :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH SKLAR AND CANDYCE I.                 :
    SMITH-SKLAR,                               :
                                               :
                       Appellants              :      No. 2081 EDA 2018

                 Appeal from the Order Dated January 19, 2018
                  in the Court of Common Pleas of Bucks County
            Civil Division at No(s): 2012-10295, TJ-17-10-18-5740

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 28, 2019

       Keith Sklar and Candyce I. Smith-Sklar (the “Sklars”) appeal from the

denial of their Petition to intervene, stay and set aside a writ of execution. We

quash the appeal.

       The parties to the instant appeal, all of whom are attorneys licensed to

practice law in this Commonwealth, have been involved in extensive, ongoing

litigation regarding the payment of counsel fees to Anthony J. Sciolla, Jr., Esq.,

in the amount of $5,364.04, since December 2012. Following three, separate

rounds of appeals1 by the Sklars, including an appeal from an arbitration

award, the trial court most recently entered an Order denying the Sklars’s

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1 Each appeal had been filed in the Commonwealth Court, transferred to this
Court, and dismissed for various deficiencies, only to be reinstated upon the
Sklars’s continued assertions that they never received necessary
correspondence from the Court. Such assertions are a recurring theme
throughout the complex procedural history of this case.
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Petition to intervene, stay and set aside the writ of execution authorizing

garnishment of the disputed amount. The trial court reasoned that the Sklars

could not avail themselves of Pa.R.C.P. 2327, as they could not be

“intervenors” in a case in which they are a party. See N.T. 1/19/18, at 15.

       Additionally, the Sklars claimed to never have received service of the

judgment in violation of Pa.R.A.P. 440. Following a hearing, the court made

a credibility determination that it was “not convinced” that Rule 440 was

violated. Id. at 15; see also Trial Court Opinion, 5/30/18, at 3.

       In further denying the Sklars’s Petition, the court considered that a

petition to strike or open the judgment was never filed and stated that it

placed “great weight upon the fact that [there was no] pending garnishment

[at issue.]” Id. at 16; see also N.T. 1/19/18, at 5.

       On appeal, the Sklars raise the following issue for our review: “Did the

trial court [] misapply the law when [it] ruled that the violation of

Pa.R.C.P. [] 440 was moot?” Brief for Appellant at 8.

       Before addressing the merits of the Sklars’s appeal, we must first

determine its timeliness.2 See Grimm v. Grimm, 149 A.3d 77, 86 (Pa. Super.
____________________________________________


2 We do note, however, that the Sklars failed to cite to any legal authority in
their brief to support their contention. Such a failure is fatal to an appeal.
See Pa.R.A.P. 2119(a); see also Milby v. Pote, 189 A.3d 1065,1079 (Pa.
Super. 2018) (stating that an appellate court “shall not develop an argument
for an appellant … ; instead, [the court] will deem the issue to be waived”);
Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (stating that
under-developed arguments are waived and include those where the party
has failed to cite any authority in support of a contention”).



                                           -2-
J-S03031-19



2016) (stating that the “question of timeliness of an appeal is jurisdictional”)

(internal citations omitted).

       The Sklars appeal from an Order entered on January 19, 2018. A Notice

of Appeal was docketed at 277 CD 2018, in the Commonwealth Court of

Pennsylvania, on February 26, 2018. The case was properly transferred to

this Court on July 25, 2018.3

       Generally, in order to preserve the right to an appeal, a notice of appeal

must be filed “within 30 days after the entry of the order from which the

appeal is taken.”       Pa.R.A.P. 903(a); see also Grimm, 149 A.3d at 86.

Thus, the Sklars had until February 20, 2018 to file a timely notice of appeal

of the January 18, 2019 Order denying their Petition. However, the record

indicates that the Sklars did not file their Notice of Appeal until 6 days after

that date.

       Initially, the Pennsylvania Commonwealth Court remanded the case to

the trial court for a determination of whether the Sklars are entitled to nunc

pro tunc relief in light of their “Explanation for Late Filing” wherein they

claimed to have “attempted to electronically file” the Notice of Appeal but

failed. See Commonwealth Court Order, 6/12/18. The trial court refrained

from making such a determination on the basis that it already approved the

appeal, despite being untimely, by virtue of filing its Pa.R.A.P. 1925(a) Opinion

____________________________________________



3See 42 Pa.C.S.A. § 5103 (providing for transfer of erroneously filed matters
between appellate courts.)

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J-S03031-19



on 5/30/18. See Trial Court Supplemental Opinion, 6/22/18, at 2. However,

as stated in Grimm, supra, the timeliness of an appeal is jurisdictional in

nature and the filing of a Pa.R.A.P. 1925(a) opinion will not create appellate

jurisdiction. We are unable to find a contention in the record that the failure

to file was the result of a breakdown in the operation of the courts. Therefore,

we conclude that the Sklars’s appeal is untimely. Accordingly, the appeal is

hereby quashed.

     Appeal quashed.4
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/19




____________________________________________


4 Our review of the record reveals that this is the Sklars’s third appeal in this
case. All appeals patently lacked merit and were clearly frivolous, evincing a
pattern of abuse of the judicial process. In light of this, we suggest that the
trial court consider the assessment of reasonable counsel fees in favor of
Anthony Sciolla, Jr., Esq.

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