J-S25016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KRAFT CONCRETE PRODUCTS, INC.                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

GILBERT DAHLSTROM

                         Appellant                   No. 917 WDA 2015


                Appeal from the Order Entered May 14, 2015
              In the Court of Common Pleas of Venango County
                    Civil Division at No(s): Civil 1267-2012
                                             Civil No. 1677-2004

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                            FILED MARCH 21, 2016

      Appellant, Gilbert Dahlstrom, appeals from the May 14, 2015 order

denying his motion to reinstate his post-verdict and appellate rights nunc

pro tunc. After careful review, we affirm.

      The trial court summarized the facts and procedural history of this

case as follows.

                  [This case] involves litigation dating back to
            2004, sounding in trespass, with many docketed
            Opinions and Orders.        Relevant to the current
            appeal, [the trial] court held a trial in July 2014
            regarding Appellant’s continued trespass on [the]
            property     [of  Kraft    Concrete   Products,  Inc.
            (Appellee)] in violation of court orders. Following
            the trial[,] the [trial] court issued [an] Order and
            accompanying Findings dated January 22, 2015, and
            filed [it] with the Venango County Prothonotary
            January 23, 2015. The Order and Findings were in
            favor of Appellee. On February 19, 2015 Appellant
            filed a [Pennsylvania Rule of Appellate Procedure
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          1925(b)] Concise Statement of Matters Complained
          of on Appeal and Notice of Appeal, without having
          filed post-trial motions.

                By Order dated March 17[, 2015], the Superior
          Court noted that Appellant had failed to follow proper
          procedure by failing to file post-trial motions within
          ten days, therefore preserved no issues for appeal.
          The Order allowed for Appellant to address a letter to
          show cause as to why the appeal should not be
          dismissed.     On March 25[, 2015], Appellant
          requested an extension to respond to the Rule to
          Show Cause, which the Superior Court granted
          March 27[, 2015]. On April 6[, 2015], Appellant
          again requested additional time, which was granted
          by the Superior Court [on] April 10[, 2015], by Order
          also noting that no further extensions would be
          permitted. An examination of the Superior Court
          docket does not indicate a letter ever being filed, and
          on May 5, 2015, the Superior Court dismissed the
          appeal sua sponte because issues were not
          preserved for appeal by post-trial motions.
          [Superior Court Order, 290 WDA 2015, 5/5/15, at
          1.]

                 Following the Superior Court’s May 5[, 2015]
          Order, Appellant filed Motion to Reinstate the
          Defendant’s Post Verdict and Appellate Rights Nunc
          Pro Tunc.      In this motion, Appellant made no
          representations as to why the deadline to file post-
          trial motions was missed, why Appellant did not
          write the letter to show cause requested by the
          Superior Court, or the legal grounds on which post-
          trial motions would lie. The motion only states [it]
          would not prejudice Appellees, and requests the
          [trial] court to permit Appellant to raise issues in
          post-trial motions or on appeal. The [trial] court
          denied the motion by Order dated May 13[, 2015,
          and entered May 14, 2015].




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Trial Court Opinion, 11/4/15, at 1-2.1 On June 11, 2015, Appellant filed a

timely notice of appeal.2

       On appeal, Appellant presents the following issue for our review.

              Whether the trial court abused its discretion or erred
              as a matter of law in denying [Appellant’s] motion
              for an appeal nunc pro tunc[?]

Appellant’s Brief at 5.

       This Court reviews the denial of permission to file a post-trial motion

nunc pro tunc according to the following principles.

              The decision to allow the filing of a post-trial motion
              nunc pro tunc is vested in the discretion of the trial
              court. Korn v. Consol. Rail Corp., 512 A.2d 1266
              (Pa. Super. 1986). We will not reverse unless the
              trial court abused its discretion. Id. at 1269.


____________________________________________


1
 We note that the trial court’s opinion does not contain pagination. For ease
of review, we have assigned each page a corresponding page number.
2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.

      Moreover, we note that it appears Appellant is now deceased. On
February 18, 2016, during the pendency of this appeal, a letter from this
Court to Appellant was returned with the envelope marked on February 16,
2016, “return to sender deceased.” No party has filed an application to
substitute the personal representative of Appellant’s estate as a party
pursuant to Pennsylvania Rule of Appellate Procedure 502. Nevertheless, we
will address the merits of the appeal because Appellant’s death does not
moot this appeal as our decision may affect the rights of his estate. See
Shiomos v. Commonwealth State Employes’ Ret. Bd., 626 A.2d 158,
158 n.1 (Pa. 1993) (noting that the death of the appellant while the appeal
was pending “does not render the case moot as the outcome may have
relevance to his estate …[]”).



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               [T]he standard of review applicable to the
               denial of an appeal nunc pro tunc is “whether
               the trial court abused its discretion.” 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.”

          Freeman v. Bonner, 761 A.2d 1193, 1194-1195
          (Pa. Super. 2000) (citations omitted).

               Allowance of an appeal nunc pro tunc lies at
               the sound discretion of the Trial Judge. 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 Trial Court may grant an
               appeal nunc pro tunc when a delay in filing [an
               appeal]     is   caused     by   “extraordinary
               circumstances involving ‘fraud or some
               breakdown in the court's operation through a
               default of its officers.’” [W]here an appeal is
               not    timely     because    of   non-negligent
               circumstances, either as they relate to
               appellant or his counsel, and the appeal is filed
               within a short time after the appellant or his
               counsel learns of and has an opportunity to
               address the untimeliness, and the time period
               which elapses is of very short duration, and
               appellee is not prejudiced by the delay, the
               court may allow an appeal nunc pro tunc.

          McKeown v. Bailey, 731 A.2d 628, 630 (Pa. Super.
          1999) (citations omitted). Our Supreme Court has
          made it clear that the circumstances occasioning the
          failure to file an appeal must not stem from counsel’s
          negligence or from a failure to anticipate foreseeable
          circumstances. Criss v. Wise, 781 A.2d 1156 (Pa.
          2001).




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Lenhart v. Cigna Cos., 824 A.2d 1193, 1195-1196 (Pa. Super. 2003)

(parallel citations omitted).

      Here,    Appellant   plainly   asserts   that   “[he]   was   not   negligent.

[A]ppellant filed a timely appeal. … The extraordinary circumstances in the

present case are the livelihood of [Appellant].”          Appellant’s Brief at 9.

Appellant does not provide any further analysis of how he was not negligent.

      The trial court found that Appellant did not offer an excuse for his

complete failure to file a post-trial motion pursuant to Pennsylvania Rule of

Civil Procedure 227.1. Trial Court Opinion, 11/4/15, at 3-4. The trial court

reasoned as follows.

                    Appellant has failed to allege any sort [of]
              fraud or breakdown in the court’s operations through
              the actions of a court officer. Rather, in his motion,
              Appellant has not articulated any reason at all for the
              delay resulting in noncompliance with Rule
              227.1(c)(2). In addition to failing to state a reason
              for delay in the motion to reinstate, Appellant chose
              not to avail himself of the opportunity to explain the
              delay provided by the Superior Court, despite
              receiving two extensions of time to submit the letter
              to show cause. The [trial] court therefore cannot
              compare the current factual situation to previous
              instances where courts of this Commonwealth have
              granted reinstatement of appellate rights nunc pro
              tunc, as the factual situation is not on the record.
              Appellant presents no extraordinary circumstances
              warranting reinstatement of appellate rights.

Id. (citation omitted).

      The trial court did not abuse its discretion by denying Appellant

permission to file post-trial motions nunc pro tunc. Appellant has repeatedly


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failed to offer any explanation of how his failure to file post-trial motions was

the result of anything other than his negligent noncompliance with Rule

227.1. In his previous appeal to this Court, he failed to reply to a rule to

show cause why the appeal should not have been dismissed for failing to file

post-trial motions, despite receiving two extensions of time to do so.

Superior Court Order, 290 WDA 2015, 5/5/15, at 1. Likewise, in his motion

to reinstate his appellate rights nunc pro tunc, he failed to disclose the

reason he did not file post-trial motions. Moreover, Appellant’s brief lacks

any analysis of how his failure to file post-trial motions was not negligent.

“The grant of nunc pro tunc relief is not designed to provide relief to parties

whose counsel has not followed proper procedure in preserving appellate

rights.” Lenhart, supra at 1197-1198. Therefore, Appellant’s attempt to

seek nunc pro tunc relief to excuse his failure to comply with Rule 227.1

fails.

         Based on the foregoing, we conclude that the trial court did not abuse

its discretion or err as a matter of law in its denial of Appellant’s motion for

permission to file a post-trial motion nunc pro tunc.        See id. at 1196.

Accordingly, we affirm the trial court’s May 14, 2015 order.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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