J-A23024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT A. HALL, ADMINISTRATOR OF                 IN THE SUPERIOR COURT OF
THE ESTATE OF DAVID JONATHAN HALL                      PENNSYLVANIA
AND THE ESTATE OF DAVID JONATHAN
HALL

                          Appellee

                     v.

21ST CENTURY PREFERRED INSURANCE
COMPANY

                          Appellant                   No. 1548 WDA 2014


                   Appeal from the Order September 10, 2014
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD 11-010190


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 07, 2015

         21st Century Preferred Insurance Company (21st Century), formerly

AIG Preferred Insurance Company, appeals from the order of the Court of

Common Pleas of Allegheny County that denied its motion for leave to

perfect post-trial motion or alternatively to allow filing and service of new

post-trial motion nunc pro tunc. After careful review, we affirm the order of

the trial court, although for reasons different from those set forth by the trial

court.

         On June 3, 2011, Robert Hall, Administrator of the Estate of David

Jonathan Hall and the Estate of David Jonathan Hall (Hall) filed a declaratory

judgment and breach of contract action against 21st Century for failure to
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provide UIM coverage. Hall and 21st Century both filed motions for summary

judgment, which the court denied on April 8, 2013.

       On January 13, 2014, following a non-jury trial, the court issued an

order directing 21st Century to provide UIM coverage to Hall.      On January

21, 2014, 21st Century electronically filed a motion for post-trial relief

requesting a new trial or entry of a declaratory judgment n.o.v. 21st Century

failed to serve the trial court with a true and correct copy of the post-trial

motion in violation of Pa.R.C.P. 227.1(f) and Allegheny County Local Rule

227.1(a).

       After 120 days passed without the trial court taking action on the post-

trial motion, Hall filed a praecipe for entry of judgment on May 28, 2014,

pursuant to Pa.R.C.P. 227.4(1)(b).

       On June 5, 2014, 21st Century filed a notice of appeal to this Court,

which was docketed at 914 WDA 2014. On August 15, 2014, the trial court

issued a statement in lieu of opinion in which it noted that because 21st

Century had not served a copy of its motion on the court, the court had no

knowledge of the motion and never ruled on it.       The court concluded that

because “it was not provided the means to address issues post-trial, this

[c]ourt cannot now address those issues.”        Statement in Lieu of Opinion,

8/15/14, at 1-2.1

____________________________________________


1
  On October 7, 2014, this Court dismissed 21st Century’s appeal. Following
this Court’s denial of 21st Century’s application for reconsideration and en
(Footnote Continued Next Page)


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      On August 27, 2014, after 21st Century became aware of its failure to

serve a copy of its post-trial motion on the court, it filed a motion for leave

to perfect post-trial motion or alternatively to allow filing and service of new

post-trial motion nunc pro tunc.             The trial court denied the motion on

September 10, 2014.

      21st Century filed a timely notice of appeal on September 22, 2014,

and on September 26, 2014, the trial court filed a statement in lieu of

opinion.

      On appeal, 21st Century raises three issues, only one of which we will

address:

      Whether the trial court erred and abused its discretion by
      denying [21st Century’s] motion for leave to perfect post-trial
      motion or alternatively to allow filing and service of new post-
      trial motion nunc pro tunc and to grant post-trial relief, as the
      trial court had jurisdiction and was not prohibited by Rule
      227.4(1)(b) from granting the requested relief, in that any
      noncompliance with Rule 227.1(f) was inadvertent, merely
      technical and non-negligent happenstance, [Hall] was not
      prejudiced, nunc pro tunc relief was timely sought, and, the
      harsh sanction of waiver was unjust.

Appellant’s Brief, at 4.2

      Pa.R.C.P. 227.4 provides, in relevant part:

                       _______________________
(Footnote Continued)

banc reargument, 21st Century filed a petition for allowance of appeal, which
our Supreme Court denied on April 28, 2015.
2
  21st Century’s remaining issues relate to the denial of summary judgment,
which we need not address in light of our disposition of 21st Century’s
request for nunc pro tunc relief.



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      Rule 227.4 Entry of Judgment upon Praecipe of a Party

      [T]he prothonotary shall, upon praecipe of a party:

      (1)   enter judgment upon . . . the decision of a judge following
            a trial without a jury, if

                                      ...

      (b) one or more timely post-trial motions are filed and the
      court does not enter an order disposing of all motions within one
      hundred and twenty days after the filing of the first motion. A
      judgment entered pursuant to this subparagraph shall be final as
      to all parties and all issues and shall not be subject to
      reconsideration.

Pa.R.C.P. 227.4.

      With respect to this Rule, our Court has held:

      In view of the language of Rule 227.4(1)(b) and the explanatory
      comment, it is clear that once the requisite 120 day period runs
      and a party opts to praecipe for the entry of judgment, the
      judgment becomes final, and immediately appealable when
      entered on the docket. . . . It is equally clear that the judgment
      is not subject to either reconsideration or any other motion to
      strike, open or vacate.

Conte v. Hahnemann University Hospital, 707 A.2d 230, 231 (Pa. Super.

1998).

      In its statement in lieu of opinion in support of the denial of 21st

Century’s motion for leave to perfect post-trial motion or alternatively to

allow filing and service of new post-trial motion nunc pro tunc, the trial court

relied on Rule 227.4(1)(b) and Conte. Although not expressly stated by the

trial court, it appears to have determined that it did not have jurisdiction to

consider the request for nunc pro tunc relief. We disagree.




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      21st Century’s August 21, 2014 motion did not seek reconsideration of

the entry of judgment nor did it seek to strike, open or vacate the judgment.

Rather, 21st Century sought nunc pro tunc post-trial relief to perfect or refile

its post-trial motion.

      In Freeman v. Bonner, 761 A.2d 1193 (Pa. Super. 2000), this Court

held that a trial court has jurisdiction to grant nunc pro tunc relief even after

judgment is entered. The appellant in Freeman filed a post-trial motion to

remove a nonsuit but did not file a memorandum of law and took no further

action. The appellee entered judgment by praecipe 120 days later because

the court did not rule on the motion.         No appeal was taken from the

judgment, and the appellee subsequently filed a praecipe to discontinue.

Two days later, the appellant filed a post-trial motion nunc pro tunc,

requesting removal of the nonsuit and the grant of a new trial.        The trial

court denied the motion, holding that pursuant to Rule 227.4(1)(b), it did

not have jurisdiction to consider the motion.

      Recognizing that under Rule 227.4(1)(b) a judgment is final and

appealable once entered and cannot be reconsidered, this Court noted:

      The correct procedure upon entry of such judgment would be for
      the aggrieved party to appeal the judgment and have the merits
      of the outstanding Post-Trial Motions addressed by the appellate
      court “as if the [trial] court had ruled” on the motions. Gibbs v.
      Herman, 714 A.2d 431 (Pa. Super. 1998).

Freeman, supra, at 1195.

      Because Rule 227.4(1)(b) does not prohibit the trial court from

reinstating a party’s right to relief, nunc pro tunc, the Freeman Court

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proceeded to analyze whether the trial court abused its discretion in denying

the appellant’s motion. In so doing, it applied the following principles:

      “As a general rule, an appeal nunc pro tunc is only granted in
      civil cases where there was fraud or a breakdown in the court’s
      operations.” Lee v. Guerin, 735 A.2d 1290, 1281 (Pa. Super.
      1999) (citing West Penn Power v. Goddard, 333 A.2d 909
      (Pa. 1975).     “In recent years, however, the courts have
      somewhat liberalized this rigid standard.” Id. In Bass v.
      Commonwealth, 401 A.2d 1133 (Pa. 1979), the Pennsylvania
      Supreme Court created “a new ground for an appeal nunc pro
      tunc, i.e. non-negligent happenstance.” In re In the Interest
      of C.K., 535 A.2d 634, 637 (Pa. Super. 1987).

Freeman, supra at 1195.

      Therefore, as in Freeman, we must determine whether 21st Century’s

actions constitute non-negligent happenstance that justifies nunc pro tunc

relief. We find guidance for this determination in Criss v. Wise, 781 A.2d

1156 (Pa. 2001), where our Supreme Court noted:

      The exception for allowance of an appeal nunc pro tunc in non-
      negligent circumstances is meant to apply only in unique and
      compelling cases in which the appellant has clearly established
      that she attempted to file an appeal, but unforeseeable and
      unavoidable events precluded her from actually doing so. See
      Cook [v. Unemployment Comp. Bd. of Review], 671 A.2d
      [1130,] 1132 [Pa. 1996]; Perry v. Unemployment Comp. Bd.
      of Review, 459 A.2d 1342, 1343 (Pa. Cmwlth. 1983) (fact that
      law clerk’s car broke down while he was on route to the post
      office, precluding him from getting to the post office before
      closing time, was a non-negligent happenstance for granting
      appeal nunc pro tunc); Tony Grande, Inc. v. Workmen’s
      Comp. Appeal Bd. (Rodriquez), 455 A.2d 299, 300 (Pa.
      Cmwlth. 1983) (hospitalization of appellant’s attorney for
      unexpected and serious cardiac problems ten days into twenty
      day appeal period was reason to allow appeal nunc pro tunc );
      Walker v. Unemployment Comp. Bd. of Review, 461 A.2d
      346, 347 (Pa. Cmwlth. 1983) (U.S. Postal Service’s failure to
      forward notice of referee’s decision to appellant’s address, as

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       appellant had requested, warranted appeal nunc pro tunc ). But
       cf. In re In the Interest of C.K., 535 A.2d 634, 639 (Pa.
       Super. 1987) (appeal nunc pro tunc denied where counsel was
       absent from office and did not learn of appellant’s desire to
       appeal before expiration period because counsel negligently
       failed to make arrangements to look over his professional
       obligations); Moring v. Dunne, 493 A.2d 89, 92-93 (Pa. Super.
       1985) (although death of appellant’s attorney may have qualified
       as a non-negligent circumstance, appellant failed to prove that
       he attempted to appeal on time but was precluded from doing so
       as a result of receiving late notice of his attorney’s death).

Criss, supra at 1160.

       Here, 21st Century’s failure to serve the court with the post-trial

motion was not the result of unforeseeable and unavoidable events. Rather,

it was the result of not following the dictates of Pa.R.C.P. 227.1(f) (“The

party filing a post-trial motion shall serve a copy promptly upon every other

party to the action and deliver a copy to the trial judge.”) (emphasis added)

and Allegheny County Local Rule 227.1(1)(a) (Post-Trial Motions shall be

filed in the Office of the Prothonotary and a copy shall be delivered to the

trial judge.”) (emphasis added).

       Accordingly,     counsel’s    actions     do   not   constitute   non-negligent

happenstance, and 21st Century has failed to establish entitlement to relief.3

       Order affirmed. Motion to Quash denied.


____________________________________________


3
   The June 5, 2014 notice of appeal did not divest the trial court of
jurisdiction to consider 21st Century’s motion for nunc pro tunc relief. See
Pa.R.A.P. 1701(c) (“Where only a particular item, claim or assessment . . . is
involved in an appeal . . . the appeal shall operate to prevent the trial court
from proceeding further with only such item, claim or assessment.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2015




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