              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Blair S. Mitchell and Joanne             :
Metcalf, and Eric Metcalf-Mitchell       :
                                         :   No. 1261 C.D. 2017
            v.                           :
                                         :   Argued: November 13, 2018
Michelle Milburn and James V.            :
Lewis and Commonwealth of                :
Pennsylvania, Department of              :
Transportation                           :
                                         :
Appeal of: Michelle Milburn              :



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION BY
BY JUDGE McCULLOUGH                                      FILED: December 6, 2018

            Michelle Milburn (Defendant Milburn) appeals from the August 3, 2017
order of the Court of Common Pleas of Montgomery County (trial court) denying her
petition to strike/vacate or open a judgment (Petition) in connection with a jury
verdict that was rendered in an underlying case that was appealed to this Court and
pending at the time she filed the Petition, see Mitchell v. Milburn, et al, __ A.3d __
(Pa. Cmwlth., No. 344 C.D. 2017, filed December 6, 2018) (Mitchell I), slip op. at 4
n.3. We incorporate our decision in Mitchell I here by reference.
            Briefly, in Mitchell I, Blair S. Mitchell (Plaintiff) was involved in a
three-car accident at an inverted “T” intersection on June 30, 2002, at approximately
8:15 p.m. on State Road 73 (Skippack Pike) at the road’s juncture point with Weber
Road, in Worcester Township, Montgomery County.                         Plaintiff commenced a
negligence action against Defendant Milburn, Defendant James V. Lewis, and
Defendant Department of Transportation (DOT). (Trial court op. at 1.)
               One day into the trial, Plaintiff and Defendant Milburn settled on the
record and agreed to enter into a pro-rata joint tortfeasor settlement agreement,
whereby Defendant Milburn would remain on the verdict sheet for the jury to assess
the proportionate share of liability among the Defendants.1 At the close of Plaintiff’s
case-in-chief, the trial court granted the oral motion for a compulsory non-suit made
by Defendant Lewis pursuant to Pa.R.C.P. No. 230.1 and dismissed him from the
case. On October 7, 2016, the jury returned a verdict, finding that Defendant Milburn
(the defendant who settled) was negligent and that Defendant DOT was not negligent.
The jury attributed 100% of the negligence to Defendant Milburn and awarded
damages in the amount of $2,315,693.00 against her and in favor of Plaintiff. (Trial
court op. at 2.)2
               After the trial court denied Plaintiff’s motions for post-trial relief on
February 21, 2017, Plaintiff filed a notice of appeal to this Court on March 16, 2017.


       1
         The written agreement itself is located in the Supplemental Reproduced Record at 45b-
47b, and the hearing transcript regarding the settlement agreement is located in Defendant
Milburn’s Reproduced Record at 46a-52a. For a discussion of joint tortfeasor and pro-rata
settlement agreements, see Taylor v. Solberg, 778 A.2d 664 (Pa. 2001); Charles v. Giant Eagle
Markets, 522 A.2d 1 (Pa. 1987).

       2
           On November 4, 2016, Defendant Milburn filed a petition to enforce her settlement
agreement with Plaintiff, seeking to have the matter marked as settled and discontinued and to have
all cross-claims against her dismissed. Plaintiff filed a response, contending that the settlement
agreement did not include a provision that provided for the filing of an order to settle, discontinue,
and end the matter. On March 17, 2017, the trial court denied the petition to enforce, concluding
that the terms of the settlement agreement did not require that such action be taken. (Trial court op.
at 3.) Defendant Milburn did not appeal that ruling to this Court.



                                                  2
Subsequently, this Court issued an order on April 26, 2017, directing Plaintiff to
reduce the verdict in Mitchell I to a judgment on the docket.3 On May 1, 2017,
Plaintiff filed a praecipe to enter judgment under Pa.R.C.P. No. 227.4, and judgment
was entered against Defendant Milburn in the amount of $2,315,693.00. (Trial court
op. at 2-3.)
               While Plaintiff’s appeal in Mitchell I was pending before this Court,
Defendant Milburn filed the Petition in the trial court on May 16, 2017. She argued
that due to the settlement agreement, it was improper and inequitable for Plaintiff to
enter judgment against her and proposed that the trial court enter an order altering the
jury’s verdict and/or judgment and issue a revised judgment that marks the case
settled as to her and enters judgment in favor of Defendants Lewis and DOT. (Trial
court op. at 3.)
               On August 3, 2017, the trial court entered an order denying the Petition.
On September 1, 2017, Defendant Milburn filed a notice of appeal to this Court.
Both Defendant Milburn and the trial court have complied with Pa.R.A.P. 1925.
(Trial court op. at 3.)
               In its Pa.R.A.P. 1925(a) opinion dated October 23, 2017, the trial court
reconsidered its ruling denying the Petition and stated that the Petition,

               should have been granted and entry of judgment against
               [Defendant Milburn] for the full amount of the verdict was
               inequitable after she executed the joint tortfeasor release.
       3
          “[T]he proper, procedural course to pursue in perfecting an appeal from [a] jury verdict is
to reduce the verdict to judgment and take an appeal therefrom and not from an order denying post-
trial motions.” Crosby v. Department of Transportation, 548 A.2d 281, 283 (Pa. Super. 1988).
Technically, an “[a]ppeal lies from the judgment entered and not the denial of post-trial motions,”
id., and a “verdict did not become final for purposes of appeal until properly reduced to and entered
as a formal judgment under Pa.R.C.P. [No.] 227.4.” Crystal Lake Camps v. Alford, 923 A.2d 482,
488 (Pa. Super. 2007).



                                                 3
              Therefore, the judgment should be opened and a new
              judgment should be entered consistent with Defendant
              Milburn’s proposed Final Judgment Order.[4] The court
              finds, however, that it is without jurisdiction to now open
              the current judgment and enter a new judgment since
              Defendant Milburn filed a notice of appeal and no timely
              motion for reconsideration was made.
(Trial court op. at 7.) The trial court, nonetheless, requested that this Court reverse its
August 3, 2017 order and remand the case for entry of Defendant Milburn’s proposed
Final Judgment Order. Id. at 8.
              On appeal to this Court, Defendant Milburn contends that her Petition
functioned as a timely-filed post-trial motion in the procedural context of Mitchell I
because judgment in that case was not officially entered on the docket until May 1,
2017, and the Petition was filed on May 16, 2017. We disagree.
              Contrary to the argument made by Defendant Milburn, the time for filing
a post-trial motion does not run from the date that judgment is officially entered on
the docket. In fact, judgment cannot be entered until after the trial court rules on
post-trial motions, which necessarily means that post-trial motions must precede the
entry of a judgment. See Pa.R.C.P. No. 227.4(b)(2). Pursuant to Pa.R.C.P. No.
227.1(c)(1), the time for filing post-trial motions commences when the jury returns its
verdict. Id.; see Oak Tree Condominium Association v. Greene, 133 A.3d 113, 116
(Pa. Cmwlth. 2016) (“[W]here a trial has taken place and timely post-trial motions
have been filed pursuant to Rule 227.1, the appeal period does not begin to run until



       4
         Defendant Milburn’s proposed Final Judgment Order was as follows: (1) The matter is
marked settled as to Defendant Milburn only; (2) Judgment is entered as to Defendant Lewis
pursuant to the directed verdict; and (3) Judgment is entered as to Defendant DOT pursuant to the
jury verdict in its favor on liability. (Trial court op. at 6.)




                                               4
the trial court has issued a decision on the post-trial motions.”).5 Specifically, a
motion for post-trial relief must be filed within 10 days after the jury’s verdict and, if
a party has filed a timely post-trial motion, any other party to the action may file post-
trial motions within 10 days after the filing of the first post-trial motion. Pa.R.C.P.
No. 227.1(c)(1).
              Here, the jury returned its verdict in Mitchell I on October 7, 2016, and
Plaintiff filed post-trial motions on October 17, 2016. No other post-trial motions
were filed. On February 21, 2017, the trial court denied Plaintiff’s post-trial motions.
Close to three months later, on May 16, 2017, Defendant Milburn filed the Petition.
As a result, the Petition was patently untimely, filed well beyond the time period
permitted for filing an appeal in Mitchell I, and, therefore, the Petition cannot be
construed as being the equivalent of a post-trial motion. See Oak Tree, 133 A.3d at
117 (“Prior to the 30-day appeal period, a trial court has broad authority to modify or
rescind an order, and is within its authority to exercise its discretion to decide even
untimely motions where there is no objection . . . . However, a trial court relinquishes
its ability to act once the 30-day period has passed.”); section 5505 of the Judicial
Code, 42 Pa.C.S. §5505.
              More importantly, in Mitchell I, Plaintiff filed a notice of appeal to this
Court on March 16, 2017, and this raises the issue of whether the trial court possessed
jurisdiction to even consider Defendant Milburn’s Petition filed on May 16, 2017.
              The law is settled in this Commonwealth that once a party takes an
appeal to an appellate court, the trial court is divested of jurisdiction over the subject
matter and “may no longer proceed further in the matter.”                  Pa.R.A.P. 1701(a).

       5
          There are exceptions not applicable here, such as when the jury is discharged or when a
nonsuit is entered in the case of a jury trial. Pa.R.C.P. No. 227.1(b)(1)-(2).



                                               5
Although now codified in our Rules of Appellate Procedure, this principle has its
roots in common law. See Pa.R.A.P. 1701(a), Note (citing In re Merrick’s Estate,
247 A.2d 786-87 (Pa. 1971); Corace v. Balint, 210 A.2d 882, 889 (Pa. 1965)). As
our Supreme Court said:      “A court of first instance cannot further proceed with a
cause after [an appeal has been filed in] an appellate court . . . . The practice . . . of
modifying (except in matters of form) or reversing orders from which an appeal has
been taken, and is pending, is disapproved.” Corace, 210 A.2d at 889.
             Nonetheless, pursuant to Pa.R.A.P. 1701(b)(1), a trial court, in relevant
part, may “[t]ake such action as may be necessary to . . . correct formal errors in
papers relating to the matter.” Id.; see Metropolitan Edison Co. v. Old Home Manor,
Inc., 482 A.2d 1062, 1065 (Pa. Super. 1984). Examples of formal errors that are
amenable to correction include technical, non-substantive amendments to an order
that have no effect on the pending appeal and cannot prompt a new appealable issue.
Pellizzeri v. Bureau of Professional and Occupational Affairs, 856 A.2d 297, 302
(Pa. Cmwlth. 2004). Other specific examples involve acts that do not require the
exercise of discretion, such as molding a verdict to reflect delay damages under
Pa.R.C.P. No. 238, see Fish v. Gosnell, 463 A.2d 1042, 1052 (Pa. Super. 1983), and
to incorporate prejudgment statutory or contractual interest to the verdict. Pa.R.A.P.
1701, Note (citing TruServ Corp. v. Morgan’s Tool & Supply Co., Inc., 39 A.3d 253,
264 (Pa. 2012)). In these instances, “the award of such interest is mandatory and not
discretionary,” Pa.R.A.P. 1701, Note, and, importantly, the computation of interest is
a “simple clerical matter based upon dates and amounts appearing on the face of the
record.” Kessler v. Old Guard Mutual Insurance Co., 570 A.2d 569, 573 (Pa. Super.
1990).




                                            6
               Typically, if not always, a trial court is divested of jurisdiction to rule
upon a petition to strike, open, or vacate a judgment after an appeal has been filed in
the underlying matter. See Richland Township v. Prodex, Inc., 646 A.2d 652, 653 n.1
(Pa. Cmwlth. 1994); McKeown v. Bailey, 731 A.2d 628, 632 n.2 (Pa. Super. 1999);
see also Leasing Service Corp. v. Benson, 464 A.2d 402, 410 (Pa. Super. 1983).6
Once a judgment has been entered on the docket pursuant to Pa.R.C.P. No. 227.4, the
judgment “shall be final as to all parties and all issues,” Pa.R.C.P. No. 227.4(1)(b),
and, until it reaches the stage of finality, “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). This is the general and
well-recognized rule, and we conclude that it applies here.
               In the appeal from Mitchell I, Plaintiff requested that this Court award
her a new trial with respect to Defendant Lewis and Defendant DOT. As a practical
matter, were this Court to deny Plaintiff relief, the judgment and verdict would be
affirmed; were we to grant Plaintiff relief, the judgment and verdict would be vacated
and a new trial would commence. However, in her Petition, Defendant Milburn
requested that the judgment be stricken, opened, or vacated. In Pennsylvania, “[a]n
order of the court striking a judgment annuls the original judgment and the parties are

       6
          Richland Township, 646 A.2d at 653 n.1 (“The trial court could not act on Prodex’s motion
to open/or strike the judgment because once an appeal is filed the trial court no longer has
jurisdiction. Pa.R.A.P. 1701(a).”); McKeown, 731 A.2d at 632 n.2 (“We see no need to address the
issue concerning Appellants’ Petition to Open/Strike Judgment . . . . The Petition was not filed until
after Appellants lodged their appeal with this Court on March 30, 1998. The Trial Court therefore
was divested of jurisdiction to act in the matter. See Pa.R.A.P. 1701.”); Leasing Service Corp., 464
A.2d at 410 (“At the time Appellant made his demand . . . for the satisfaction of the judgment
against him, our appellate Court had jurisdiction of his appeal, which inter alia, challenged both the
very validity of the judgment and the amount of it . . . . We do not believe that Rule 1701(a)
permitted the lower court to examine the merits and to declare whether or not the Appellant still
bears liability on the judgment.”).



                                                  7
left as if no judgment had been entered.” Crystal Lake Camps v. Alford, 923 A.2d
482, 488 (Pa. Super. 2007). Similarly, a petition to open a judgment, if granted, has
the effect of opening the judgment to permit further proceedings. See Estate of
Gasbarini v. Medical Center of Beaver County, Inc., 409 A.2d 343, 345 (Pa. 1979).
And when a judgment is vacated, the effect is “[t]o nullify or cancel,” “make void,”
or “invalidate” the judgment. BLACK’S LAW DICTIONARY 1688 (9th ed. 2009). By
its very nature, a petition seeking to either strike, open, or vacate a judgment attacks
the underlying judgment itself.        Consequently, Defendant Milburn’s Petition
essentially requested the trial court to set aside or otherwise modify a verdict and
judgment that is currently the subject matter and basis of the appeal pending in
Mitchell I.     Pursuant to Pa.R.A.P. 1701(a) and its accompanying case law,
Defendant Milburn lacked the legal authority to make such a request, and the trial
court lacked the legal authority to rule upon such a request.
              Moreover, although in Mitchell I, Defendant Milburn remained on the
verdict sheet as part of her settlement agreement, a trial court can decide not to
include a settling defendant on, or remove a settling defendant from, the verdict sheet.
This evidentiary decision, however, is not a mandatory or ministerial act, but instead,
involves the exercise of discretion. See Rose v. Annabi, 934 A.2d 743, 747 (Pa.
Super. 2007).    In the usual practice, a party seeks to mold or amend a verdict via
post-trial motions before the verdict is reduced to a judgment. A trial court, though,
cannot mold or amend the verdict “to invade the province of the jury,” “to satisfy the
supposed equities of the case,” or make a perceived correction “where the intention of
the jury is not obvious,” such as “when the question was never submitted to the jury.”
House of Pasta, Inc. v. Mayo, 449 A.2d 697, 701 (Pa. Super. 1982). If a party desires
a court of common pleas to take action in circumstances like these, the most



                                           8
appropriate remedy is to wait until the judgment becomes final and then file a petition
to open the judgment, see id. at 698-704 & nn.1, 4, which is a proceeding that
involves judicial discretion and invokes the trial court’s equitable powers. See Balk
v. Ford Motor Company, 285 A.2d 128, 130 (Pa. 1971).
             Here, the jury returned a verdict finding Defendant Milburn 100%
negligent and awarded Plaintiff $2,315,693.00 in damages. There is nothing in the
record to sustain the notion that this is not what the jury intended, and its verdict was
accurately reduced to a judgment upon praecipe by Plaintiff. (Reproduced Record
(R.R.) at 48a-49a, 138a-40a.) The entire legal theory supporting the Petition is that
the verdict, as reduced to a judgment, is “unfair” and “prejudicial” to Defendant
Milburn. (R.R. at 71a-72a.) Therefore, the Petition seeks relief based upon equitable
and discretionary considerations and has no basis in the expressed intent of the jury.
The Petition, as such, requests that the judgment be modified or amended in a manner
that does not constitute the mere correction of a formal error, as that concept is
envisioned and embodied in Pa.R.A.P. 1701(b)(1). The trial court, therefore, was
divested of jurisdiction to rule upon the Petition in the first instance.
             Defendant Milburn also argues that the trial court erred in denying the
Petition on the merits in its August 3, 2017 order. For support, Defendant Milburn
cites case law discussing the purpose and effect of a settlement agreement and the
fact that the trial court reconsidered the matter and later found that she was entitled to
relief. However, because we have determined that the trial court lacked jurisdiction
to decide the Petition, any discussion of the merits of that Petition is unnecessary and
would be advisory in nature.
             Where, as here, “a court takes action beyond the power conferred on it
by law (its jurisdiction), its action is a nullity.” Dover v. Philadelphia Housing



                                             9
Authority, 318 465 A.2d 644, 649 (Pa. Super. 1983). Accordingly, we vacate the trial
court’s August 3, 2017 order and remand with direction that the trial court enter an
order dismissing the Petition for want of jurisdiction.      Our decision is without
prejudice to Defendant Milburn filing another petition, after Mitchell I obtains the
status of a final judgment, that seeks to modify, amend, or otherwise alter the verdict
and/or judgment for the reasons and legal grounds stated in her Petition. See Weigley
v. Coffman, 22 A. 919, 921 (Pa. 1891); Jonas v. Wiesmeth Construction Co., 520
A.2d 40, 41 (Pa. Super. 1987).




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge



Judge Cohn Jubelirer did not participate in this decision.




                                          10
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Blair S. Mitchell                         :
                                          :    No. 1261 C.D. 2017
             v.                           :
                                          :
Michelle Milburn and James V.             :
Lewis and Commonwealth of                 :
Pennsylvania, Department of               :
Transportation                            :
                                          :
Appeal of: Michelle Milburn               :


                                      ORDER


             AND NOW, this 6th day of December, 2018, the August 3, 2017 order
of the Court of Common Pleas of Montgomery County (trial court) is vacated. The
case is remanded to the trial court with direction to enter an order dismissing the
petition to strike/vacate or open the judgment (Petition) filed by Michelle M.
Milburn (Milburn) for lack of jurisdiction. This order is without prejudice to
Milburn filing another petition on the same grounds as the instant Petition.
             Jurisdiction relinquished.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge
