J-A11035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE TASA GROUP, INC.                            IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

RODERICK GRAHAM

                         Appellant                   No. 2301 EDA 2014


                 Appeal from the Order Dated July 15, 2014
            In the Court of Common Pleas of Montgomery County
                      Civil Division at No.: 2014-10262


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 21, 2015

      Roderick Graham, pro se, appeals the trial court’s July 15, 2014 order

quashing his petition to appeal nunc pro tunc. We affirm.

      The trial court set forth the pertinent factual and procedural history of

this case as follows:

      TASA Group, Incorporated [“TASA”] is a Pennsylvania
      corporation that delivers expert witness referrals to attorneys
      throughout the country. [Graham] is an attorney residing in
      Shelby County, Alabama. In July 2009, [Graham] engaged
      [TASA] to refer an expert witness to testify in an Alabama
      federal court case. As a result of [Graham’s] contact with
      [TASA], [TASA] referred [Graham] to an expert. Subsequent to
      the referral, [TASA] sent [Graham] a memorandum of
      confirmation detailing the agreement pertaining to the services
      rendered. This memorandum contained a clause stating that by
      his acceptance of the expert services, [Graham] agreed to
      concurrent exclusive jurisdiction and venue of the Montgomery
      County Court of Common Pleas of Pennsylvania [(“trial court”)]
      and the United States District Court for the Eastern District of
      Pennsylvania with respect to the enforcement of the contract.
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     [TASA] filed a complaint against [Graham] alleging that
     [Graham] owed [TASA] a balance of $5,140.43 for its services.
     [TASA] mailed the complaint to [Graham] via certified mail in
     April 2011. [TASA] also mailed a notice of the hearing on April
     4, 2011. The Montgomery County Magisterial District Court
     [(“magisterial court”)] held a hearing on May 2, 2011. [Graham]
     did not appear at the hearing, and immediately following the
     hearing, the [magisterial court] entered a default judgment
     against [Graham] in the amount of $5,300.30, representing the
     amount of the judgment as well as judgment costs. [Graham]
     received a copy of the default judgment on May 28, 2011.
     [Graham] did not file an appeal.            This judgment was
     domesticated in the Circuit Court of Jefferson County, Alabama
     on October 12, 2011.

     On May 6, 2014, [Graham] filed a petition to appeal nunc pro
     tunc the judgment of May 2, 2011. On May 20, 2014, [TASA]
     filed a motion to quash the appeal nunc pro tunc. On July 8,
     2014, [the trial court] heard argument on the motion to quash.
     Subsequently on July 15, 2014, [the trial court] granted
     [TASA’s] motion to quash the appeal nunc pro tunc.

Trial Court Opinion (“T.C.O.”), 8/29/2014, at 1-2 (capitalization modified).

On August 5, 2014, Graham filed a notice of appeal, which was docketed in

this Court at 2301 EDA 2014 on August 14, 2014. The trial court did not

order Graham to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Graham did not file a concise statement.

However, on August 29, 2014, the trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a).

     Before this Court, Graham presents the following four issues for

appeal:

     1. Whether the [trial court] erred in refusing to accept
        [Graham’s] notice of appeal based on fraud and lack of
        personal and subject matter jurisdiction until [Graham] file[d]
        a petition to appeal nunc pro tunc?


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      2. Whether [Graham] can file an appeal to the [trial court]
         based on fraud and lack of personal jurisdiction and subject
         matter jurisdiction after [thirty] days of the execution of the
         magisterial court’s default judgment?

      3. Whether [Graham] can file a petition to appeal nunc pro tunc
         based on a default judgment rendered based on a forged
         contract after [thirty] days of the execution of the magisterial
         court’s default judgment?

      4. Whether the [trial court] erred in granting [TASA’s] motion to
         quash [Graham’s] petition to appeal nunc pro tunc, where
         [Graham] alleges the judgment is based on a feign [sic]
         invoice, and alleges that the [trial] court lacks personal and
         subject matter jurisdiction?

Brief for Graham at 5 (capitalization modified; italics added). These issues

are of a piece. We address them in a unitary discussion.

      Our Supreme Court has characterized the purpose of nunc pro tunc

restoration of appellate rights as follows:

      Allowing an appeal nunc pro tunc is a recognized exception to
      the general rule prohibiting the extension of an appeal deadline.
      This Court has emphasized that the principle emerges that an
      appeal nunc pro tunc is intended as a remedy to vindicate the
      right to an appeal where that right has been lost due to certain
      extraordinary circumstances. Generally, in civil cases an appeal
      nunc pro tunc is granted only where there was fraud or a
      breakdown in the court’s operations through a default of its
      officers.

Union Elec. Corp. v. Bd. Of Prop. Assessments, Appeals & Review of

Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000) (citations and internal

quotation marks omitted).

      Our standard of review over an order denying nunc pro tunc

restoration of a petitioner’s appellate rights is deferent:



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       The denial of an appeal nunc pro tunc is within the discretion of
       the trial court, and we will only reverse for an abuse of that
       discretion.    Freeman v. Bonner, 761 A.2d 1193, 1194
       (Pa. Super. 2000). In addition to the occurrence of “fraud or
       breakdown in the court’s operations,” nunc pro tunc relief may
       also 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.” Criss v. Wise, 781 A.2d 1156, 1159
       (Pa. 2001).

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

(citations modified; brackets in the original).1 “An abuse of discretion occurs

when a trial court, in reaching its conclusions, overrides or misapplies the

law, or exercises judgment which is manifestly unreasonable, or the result of

partiality, prejudice, or ill will.” U.S. Bank N.A. v. Mallory, 982 A.2d 986,

994 (Pa. Super. 2009).

       In the present matter, TASA filed a complaint against Graham in April

2011. TASA also mailed Graham a notice of the hearing on April 2, 2011.

The magisterial court subsequently held a hearing on May 2, 2011, and

entered a judgment against Graham in the amount of $5,300.30. Graham

acknowledged having received notice of that hearing; however, he failed to

appear at the hearing.          Notes of Testimony (“N.T.”), 7/8/2014 at 3-4.

____________________________________________


1
      Graham narrows his argument to an alleged existence of fraud or
breakdown in the court’s operation. Graham makes no argument with
regard to the three-part test set forth by the Criss Court. See Criss, 781
A.2d at 1159.



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Graham also acknowledged that he received notice of the judgment on May

28, 2011. Id.2

       Pa.R.C.P.M.D.J. 1002 provides:

       A. A party aggrieved by a judgment for money . . . may appeal
          therefore within thirty (30) days after the date of the entry of
          the judgment by filing with the Prothonotary of the court of
          common pleas a notice of appeal on a form which shall be
          prescribed by the State Court Administrator together with a
          copy of the Notice of Judgment issued by the magisterial
          district judge. The Prothonotary shall not accept an appeal
          from an aggrieved party which is presented for filing more
          than thirty (30) days after the date of entry of the judgment
          without leave of court and upon good cause shown.

Pa.R.C.P.M.D.J. 1002(A). The magisterial court entered a judgment against

Graham on May 2, 2011, thus, Graham had until June 1, 2011, to file an

appeal.    Admittedly, Graham did not file an appeal before June 1, 2011.

Rather, Graham filed his petition to appeal nunc pro tunc with the trial court

on May 6, 2014—nearly three years past the June 1, 2011 deadline.

       As previously mentioned, a trial court may grant an appeal nunc pro

tunc when a delay in filing is cause by extraordinary circumstances involving

fraud or some breakdown in the court’s operations through a default of its

officer. Fischer v. UPMC Nw., 34 A.3d 115, 120 (Pa. Super. 2011).
____________________________________________


2
      In addition to the testimony in this case, in a separate but related
lawsuit, Graham filed a complaint against TASA in the United States District
Court for the Northern District of Alabama on April 22, 2013. In his
complaint, Graham also acknowledges that he received notice of the
judgment against him on May 28, 2011. Complaint for Graham, 4/22/2013
at 1.



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     Graham’s       sole   argument   alleging   a    breakdown    in   the   court’s

operations is that TASA did not provide the magisterial court with his

complete address, and, as a result, Graham claims that he did not receive

timely notice of the magisterial court’s judgment within the thirty-day

statutory period.     Brief for Graham at 14.        Hence, Graham’s claims that

there was a breakdown in the court’s operations. However, his claim finds

no factual support in the record. To the contrary, Graham twice admitted

that he received timely notice of both the underlying lawsuit against him and

the resulting judgment.      Consequently, Graham has failed to demonstrate

that there was a breakdown in the court’s operations.

     Additionally, Graham claims that TASA “committed fraud by creating

the false and/or forged invoice/agreement to get a judgment and collect

bogus expert witnesses’ expenses.” Id. at 17. Graham’s claims, however,

are in no way directly or indirectly related to his failure to make a timely

appeal. Clearly, there is no connection between Graham’s claims of fraud on

behalf of TASA and his failure to make a timely appeal.           See Fischer, 34

A.3d at 120 (granting an appeal nunc pro tunc when the appellant’s delay in

filing an appeal is the result of fraud or some breakdown in the court’s

operations).

     In a final effort to relitigate the substantive claims of this lawsuit,

Graham raises general challenges to the magisterial court’s subject matter

and personal jurisdiction. Brief for Graham at 18-32. Specifically, Graham

argues that he never received a Memorandum of Confirmation, thus,

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Graham claims that he is not subject to the forum selection clause contained

within the Memorandum of Confirmation. Id at 16.

      The above-mentioned Memorandum of Confirmation contained the

following clause:

      Consent To Jurisdiction And Venue

      You consent to the concurrent and exclusive jurisdiction and
      venue of the Montgomery County Court of Common Pleas of the
      Commonwealth of Pennsylvania and the United States District
      Court for the Eastern District of Pennsylvania, with respect to the
      enforcement of this Memorandum, the collection of any amounts
      due under this Memorandum, or any disputes arising under this
      Memorandum.

Memorandum of Confirmation, 3/27/2009 at 2.

      During the trial court hearing, however, Graham expressly admitted

that he received this Memorandum of Confirmation.        N.T. at 14.   Graham

also admitted that he paid the balance on the Memorandum of Confirmation,

thereby subjecting him to the jurisdictional clause.      Id.   Consequently,

Graham’s claim that he was not subject to the forum selection clause

contained with the Memorandum of Confirmation is meritless.

      For all of the above-mentioned reasons, the trial court did not abuse

its discretion in denying Graham’s appeal.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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