J-S02042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RAYMOND J. EVERS                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

PAOLA CHIAVATTI AND MYRNA
CHIAVATTI

                        Appellants                    No. 1641 EDA 2014


                   Appeal from the Order of April 10, 2014
           In the Court of Common Pleas of Philadelphia County
            Civil Division at No.: March Term 2014, No. 003023


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                             FILED MARCH 11, 2015

     Paola Chiavatti and Myrna Chiavatti (collectively, “Appellants”) appeal

from the order of April 10, 2014, denying their appeal nunc pro tunc to the

court of common pleas following a judgment against them entered by the

Philadelphia municipal court. We affirm.

     The trial court set forth the facts of this case as follows:

     On January 7, 2013, this action commenced as a landlord tenant
     complaint filed in the Philadelphia Municipal Court.

     On February 5, 2014, judgment was entered for plaintiff,
     Raymond J. Evers, in the amount of $1075.00 for rent and/or
     utilities, $750 attorney’s fees, and $1,854.31 other fees, as well
     as $155.50 in costs, for a total judgment of $3,384.81.
     Possession was granted to the landlord for nonpayment of rent.
     The municipal court docket states that “all appeared.”

     On March 19, 2014, Appellants untimely filed the instant petition
     for appeal nunc pro tunc, arguing that they had not received
     notice of the entry of the judgment, “until [they were] notified
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      by [their] attorney on March 14, 2014, of its entry.”
      Appellant[s] further assert[] that the docket does not indicate
      notice was mailed to [them].

      On April 11, 2014, this [c]ourt entered an Order denying
      Appellants’ motion for nunc pro tunc relief.

      On April 16, 2014, Appellants filed a Motion for Reconsideration
      to “obtain the reasons for the [c]ourt’s denial of [their] petition.”

      On April 22, 2014, this [c]ourt entered an Order denying
      Appellants’ Motion for Reconsideration.

      On May 9, 2014, Appellants filed a Notice of Appeal to the
      Superior Court.

      On May 12, 2014, this [c]ourt filed its Order pursuant to
      Pa.R.A.P. 1925(b), directing Appellants to file their Concise
      Statement of Matters Complained of on Appeal within twenty-
      one (21) days.

      On May 19, 2014, Appellants filed a timely Statement of Errors
      Complained of on Appeal, listing the procedural history of the
      case and complaining of general trial court error in “ignoring” the
      facts listed in the instant petition.

Trial Court Opinion (“T.C.O.”), 7/25/2014, at 1-2. The trial court entered its

Pa.R.A.P. 1925(a) opinion on July 25, 2014, holding that Appellants’ Rule

1925(b) statement was defective and that their issues on appeal lacked

merit. See id. at 2-6.

      Appellants raise two questions for our review:

      A.     Did the trial court abuse its discretion in denying the
      petition for an appeal nunc pro tunc?

      B.     Did the trial court commit an error of law in denying the
      petition for an appeal nunc pro tunc?




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Appellants’ Brief at 2.1

       Both of Appellants’ questions challenge the trial court’s denial of their

petition for appeal nunc pro tunc and petition for reconsideration of the

denial because “both [m]otions were unopposed by [Raymond Evers],” and

“because the docket did not show mailing of the notices of judgment[,] and

thus there was a breakdown in the court’s operation.” Id. at 8, 10-11.

       Preliminarily, however, we must address the trial court’s contention

that Appellants waived their issues on appeal because they filed a defective

Pa.R.A.P. 1925(b) statement. See T.C.O. at 2-3. Specifically, the trial court

determined that the statement “does not set forth only those rulings or

errors Appellant intends [sic] to challenge, and further does not comply with

Pa.R.A.P. 1925(b)(iv), which states that ‘the statement should not be

redundant or provide lengthy explanations as to any error.’” Id. at 2 (citing

Pa.R.A.P. 1925(b)(i)-(iv)). Appellants fail to respond to this determination in

their brief.

       We have consistently held that a Rule 1925(b) statement is not
       in compliance with the Rules of Appellate Procedure if it is so
       vague and broad that it does not identify the specific questions
       raised on appeal.

          When a court has to guess what issues an appellant is
          appealing, that is not enough for meaningful review.
          When an appellant fails adequately to identify in a concise
          manner the issues sought to be pursued on appeal, the
____________________________________________


1
     Evers has not filed an appellee’s brief or otherwise participated in this
appeal.



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         trial court is impeded in its preparation of a legal analysis
         which is pertinent to those issues.

         In other words, a Concise Statement which is too vague to
         allow the court to identify the issues raised on appeal is
         the functional equivalent of no Concise Statement at all.

Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803-04 (Pa. Super. 2007)

(citations omitted).

      Here, Appellants’ Rule 1925(b) statement is a three-page, fifteen-

paragraph recitation of the facts underlying their claims before the municipal

court. See Rule 1925(b) Statement, 5/19/2014, at 1-3 ¶¶ 1-15. However,

their statement includes the claims:

      7.   [Appellants] never received notice of the entry of said
      [judgment] until [they were] notified by [their] attorney on
      March 14, 2014 of its entry.

      8.   The docket of the Philadelphia Municipal Court in this case
      does not indicate that notice of the [judgment] was mailed to
      [Appellants].

                                 *      *    *

      11. [Evers] did not oppose this Petition [to appeal nunc pro
      tunc from the Judgment of February 5, 2014].

Id. at 2 ¶¶ 7-8, 14.      Furthermore, the trial court was able to address

Appellants’ claims in its Rule 1925(a) opinion. See T.C.O. at 3-6. Although

Appellants’ Rule 1925(b) statement includes some unnecessary, lengthy

explanations of perceived error in violation of Pa.R.A.P. 1925(b)(iv), it is not

so vague as to have impeded the trial court’s review of the issues on appeal.

See Hess, 925 A.2d at 803-04. Thus, we conclude that Appellants have not




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waived their issues due to a defective Rule 1925(b) statement, and proceed

to review the merits of their appeal.

      Our standard of review is well-settled:

      Allowance of an appeal nunc pro tunc lies at the sound discretion
      of the [t]rial [j]udge. More is required before such an appeal will
      be permitted than the mere hardship imposed upon the
      appellant if the request is denied. As a general matter, a [t]rial
      [c]ourt may grant an appeal nunc pro tunc when a delay in filing
      is caused by extraordinary circumstances involving fraud or
      some breakdown in the court’s operation through a default of its
      officers.

McKeown v. Bailey, 731 A.2d 628, 630 (Pa. Super. 1999) (citations and

quotation marks omitted).

      Here, Appellants claim the court erred or abused its discretion in

denying their appeal nunc pro tunc because Evers failed to oppose the

motion. See Appellants’ Brief at 8-9. Further, they claim that an alleged

failure to mail the notice of judgment to Appellants constitutes a breakdown

in the court’s operation. Id. at 11.

      Appellants fail to develop or cite any authority for the proposition that

a trial court must grant an appeal nunc pro tunc simply because the petition

is unopposed, nor were we able to find any support of the same in our

research. See Pa.R.A.P. 2119(a)-(b). The trial court, in granting a petition

to appeal nunc pro tunc, is permitted to exercise its sound discretion,

independent of the parties’ opposition.       See McKeown, 731 A.2d at 630.

Here, the trial court determined that the petition was untimely, and that no

“extraordinary circumstances involving fraud or some breakdown in the

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court’s operation through a default of its officers” justified granting the

untimely appeal. T.C.O. at 4 (citation omitted).

      It is well-settled that:

      It is the information recorded by the justice of the peace in her
      records that fixes the time of judgment and not the written
      notice to defendant. Under Section 5 of the Act of December 2,
      1968 P.L. 1137 (42 P.S. § 3005), and Pa.R.C.P.J.P. 1002, the
      20-day limit for the filing of an appeal from a district justice
      begins to run from the time of entry of the judgment and not
      from the date appellant received notice thereof, and such
      limitation is mandatory and binding, absent any allegations of
      fraud or its equivalent.

Conrad v. Kemmerer, 447 A.2d 1032, 1033 (Pa. Super. 1982) (case

citations omitted).   The docket reflects that “[a]ll parties appeared” at the

February 5, 2014 hearing at which judgment for Evers was entered.          See

Docket, 2/5/2014, at Entry No. 50 (“Disposition – Judgment for Plaintiff”).

Appellants do not contest that they were present at the hearing.          Thus,

regardless of when notice was received by Appellants or their counsel, the

appeal date began to run as of the hearing, at which all parties were

present.

      Appellants contend that a breakdown occurred because they were not

mailed a notice of judgment. Appellants’ Brief at 11. This is demonstrably

false, as it is long-settled that a party has notice of a judgment if they were

present when it was entered.      See Neff v. Pennsylvania Daughters of

Liberty, 62 Pa. Super. 251 (Pa. Super. 1916) (holding that due notice was

provided where protesting party appeared at the hearing where judgment


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was entered). Therefore, they had notice as of February 5, 2014, and no

breakdown in the court’s operation occurred to deprive them of timely notice

of the judgment entered against them.

      Furthermore, Appellants argue that they “never received notice of the

entry of said [possession judgment] until [they were] notified by [their]

attorney on March 14, 2014 of its entry.” Appellants’ Brief at 4. However,

Appellants do not provide any information as to when their attorney received

written notice of the entry after appearing at the hearing.      Thus, absent

evidence that their attorney was not timely notified, his failure to inform his

clients of a judgment entered against them until March 14, 2014 cannot be

attributed to a breakdown in the operations of the court. Cf. G.A. v. D.L.,

72 A.3d 264, 269 (Pa. Super. 2013) (“Valid service was complete when [the

party’s] attorney received a copy of the [contempt] petition.”).          This

argument does not merit relief.    Accordingly, the trial court did not err or

abuse its discretion in determining that no extraordinary circumstances

involving fraud or some breakdown in the court’s operation occurred, and

thus, that Appellants were not entitled to an appeal nunc pro tunc from the

municipal court to the court of common pleas.

      Order affirmed.

      Judge Olson joins the memorandum.

      Judge Mundy concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2015




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