J. S38015/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

W.L.P., FATHER                           :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
Y.L.M., MOTHER                           :          No. 3332 EDA 2015
                                         :
APPEAL OF: W.L.P., FATHER                :


                   Appeal from the Order, October 5, 2015,
             in the Court of Common Pleas of Philadelphia County
                    Family Court Division at No. OCO701760


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 08, 2016

      W.L.P. (“Father”) appeals, pro se, from the order entered October 5,

2015, in the Philadelphia County Court of Common Pleas, denying his motion

for leave to appeal nunc pro tunc the custody order of October 14, 2014

awarding sole legal and physical custody of W.P., III, born in April of 2001,

I.P., born in February of 2007, and M.P., born in January of 2009

(collectively, the “Children”), to Y.L.M. (“Mother”). After review, we affirm.

      The relevant factual and/or procedural history was summarized by the

trial court as follows:

                  The various filings in this child custody matter
            heard by this court are as follows: Petition for Partial
            Physical Custody filed April 5, 2011 (Father); Petition
            for Contempt filed February 22, 2013 (Father);
            Complaint for Primary Physical Custody filed April 5,
            2013 (Mother); Petition for Paternity Testing filed
            June 4, 2013 (Father); Motion for Recusal filed
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           February 24, 2014 (Father); Motion for Recusal filed
           August 12, 2014 (Father) and Motion for Recusal
           filed August 5, 2015 (Father).

                 An interim order was entered on June 21,
           2013, awarding [Mother] sole physical and sole legal
           custody of the [C]hildren . . . , subsequent to a
           hearing on a Petition for Emergency Relief filed on
           June 6, 2013.

                  The first custody hearing before this court was
           scheduled for July 22, 2013, but was continued
           pending the results of the paternity tests requested
           by Father for the three children. . . . After results
           were received, an order was entered dated
           August 28, 2013, adjudicating [Father] the [f]ather
           of the three children. Custody hearings were then
           conducted on November 1, 2013, January 6, 2014,
           March 31, 2014[1] and August 24, 2014. Father’s
           Petitions for Contempt and first two petitions for
           recusal were denied on August 24, 2014. A final
           custody order together with a Summary Opinion was
           entered on October 14, 2014, awarding Mother sole
           physical and sole legal custody and denying Father’s
           petition for partial physical custody.[2]

                 No Notice of Appeal of the October 14, 2014
           order was ever docketed, nor was any copy of a
           Notice of Appeal ever received by this Court, nor has
           any copy of a Notice of Appeal ever been located in
           the court file.



1
  Technical difficulties allegedly prevented this hearing from proceeding as
scheduled. (Trial court summary opinion, 10/14/14 at 2-3.)
2
  Father was, however, granted telephone contact with the two younger
children, at Mother’s discretion, at the home of a paternal relative or other
person who could appropriately monitor the conversation. (Trial court order,
10/14/14 at 1.)      Further, Mother was directed to secure a therapist
recommendation for the oldest child, at which time telephone contact
between the child and Father may occur at the child’s request and/or as
recommended by the therapist. (Id. at 1-2.)


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                   On March 13, 2015, Father filed an Application
             for Leave to Appeal Nunc Pro Tunc with regard to the
             October 14, 2014 order, which Application stated
             that he had filed a Notice of Appeal on November 7,
             2014 and it was never docketed. A copy of a Notice
             of Appeal of the October 14, 2014 order, dated
             November 7, 2014, was attached to said Application
             as Exhibit “A.” The certificate of service attached to
             said Notice of Appeal states that the Notice was sent
             to the Clerk of Court, Family Court Division on
             Chestnut Street in Philadelphia on November 7,
             2014.[3]    No document showing delivery of the
             appeal to the prison authorities was attached to said
             Notice.[4]

Trial court opinion, 12/4/15 at 1-2 (footnotes omitted).

       The trial court conducted hearings on Father’s motion for leave to

appeal nunc pro tunc on June 1, 2015, July 20, 2015, and October 5, 2015.

Father, at all times relevant hereto, has been incarcerated at SCI-Houtzdale,

where he is serving a sentence of 35½ to 71 years.          He appeared and

participated in these hearings by video conference from the correctional

facility.   Aside from Father, the court additionally took testimony from

Corrections Assistant Superintendent, Rebecca Reipr, on June 1, 2015, and

three trial court employees, two from the Clerk of Court, Fred Keller and


3
  Father readily admitted that he did not send a copy of the notice of appeal
to the trial judge or counsel for Mother because he did not have the funds.
(Notes of testimony, 6/1/15 at 10.)
4
  Father did, however, attach correspondence to the Clerk of Court,
Administrative Judge, Superior Court Prothonotary, and from the Deputy
Prothonotary, dated December 7, 2014, December 26, 2014, February 24,
2015, and March 2, 2015, regarding his appeal. This correspondence was
not copied to the trial judge or counsel for Mother. (Motion for leave to
appeal nunc pro tunc, 3/13/15.)


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Doug    Jamieson,    and   one   from   Administrative   Services/mail   room,

Thomas Hanna, on July 20, 2015.5

       Father testified that he sent a notice of appeal of the October 14, 2014

order to the Clerk of Court for filing on November 7, 2014.          (Notes of

testimony, 6/1/15 at 6.) Upon not receiving a filed copy in return, Father

stated that he sent correspondence dated December 7, 2014, to the Clerk of

Court regarding the status of his appeal and December 26, 2014, to the

Administrative Judge regarding the Clerk of Court’s lack of filing and lack of

response. (Id. at 7; motion for leave to appeal nunc pro tunc, 3/13/15,

Exhibits “B” and “C”.) Father then sent correspondence dated February 24,

2015, to the Prothonotary of this court inquiring as to whether an appeal

had been forwarded by the trial court. (Id. at 8; motion for leave to appeal

nunc pro tunc, 3/13/15, Exhibit “D.”)      A response dated March 2, 2015,

from the Deputy Prothonotary advised that, after review of the dockets, no

such appeal had been filed.      (Id.; motion for leave to appeal nunc pro

tunc, 3/13/15, Exhibit “E.”)

       Father testified on June 1, 2015, that he sent the November 7, 2014

notice of his appeal using one his eight free envelopes provided by the



5
  The testimony of these trial court employees became relevant as counsel
for Mother reminded the trial court that Father’s November 7, 2014 notice of
appeal was allegedly sent at or around the time that the Family Court
relocated to new facilities. (Notes of testimony, 6/1/15 at 24-28.) The
testimony failed to reveal any issues with the mail during this time period.
(Notes of testimony, 7/20/15 at 11-39.)


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correctional facility and, therefore, did not need to append a cash slip.

(Notes of testimony, 6/1/15 at 9-13.)       Nonetheless, on June 29, 2015,

Father filed an amendment to exhibits in nunc pro tunc appeal, which

included Exhibit “F,” a copy of a Commonwealth of Pennsylvania Department

of Corrections cash slip, dated November 7, 2014, evincing legal mail to the

Clerk of Courts, Family Court Division, in Philadelphia.      (Amendment to

exhibits in nunc pro tunc appeal, 6/29/15.) This precipitated the trial court

to issue an order dated July 2, 2015, for Father to produce the corrections

official who signed the cash slip “to confirm its authenticity.” 6     (Order,

7/2/15.)   At the hearing on July 20, 2015, where Father asserted that he

had been “moved on [sic] three different housing units . . . and can’t even

recall who the officer is” and further suggested that “[n]o officer is going to

come up to a court situation unless he’s subpoenaed by the Court,” the court

therefore entered an order directing the warden at SCI-Houtzdale ascertain

the identity of the official who signed the cash slip.   (Notes of testimony,

7/20/15 at 6; order, 7/20/15.)        On August 21, 2015, after receiving

correspondence that a mailroom inspector whose handwriting appeared on

the cash slip, indicating no additional postage was necessary, had been

identified, the court entered an order scheduling the October 5, 2015


6
  The court explained that “since this slip was not part of the copy of the
Notice of Appeal attached to the Nunc Pro Tunc Motion and was never
previously received by this court, additional testimony was needed to
establish the authenticity of said document for proof of filing with the prison
authorities.” (Trial court opinion, 12/4/15 at 5.)


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hearing. (Letter, 8/19/15; order, 8/21/15.) In so doing, the court further

ordered that Father present the original cash slip and that the Assistant

Corrections Superintendent produce this mailroom inspector at the hearing.

(Order, 8/21/15.)    However, at the October 5th hearing, Father removed

himself,7 thereby concluding the hearing prior to the court determining

whether the requested mailroom inspector was present.               (Notes of

testimony, 10/5/15 at 5.) As Father removed himself from the proceedings,

after having also done so on July 20, 2015,8 the trial court denied Father’s

motion for leave to appeal nunc pro tunc. (Notes of testimony, 10/5/15 at

6.) Father filed a notice of appeal, pro se, on November 5, 2015.9


7
   Father refused to proceed and continue with the hearing unless the court
first addressed his also outstanding motion for recusal, filed August 5, 2015,
stating, in part, “I’m not going forward with anything else until you recuse
yourself. If you’re not recusing yourself it’s the end of this hearing.” (Notes
of testimony, 10/5/15 at 5.)
8
  Father excused himself from the hearing on July 20, 2015, after raising the
issue of recusal. (Notes of testimony, 7/20/15 at 9-11.) The court chose to
continue and took the testimony of the trial court employees. (Id. at 11.)
9
  As the October 5, 2015 order was entered on the docket the same day, the
notice of appeal had to be filed by November 4, 2015. See Pa.R.A.P. 903(a)
(notice of appeal shall be filed within 30 days after the entry of the order
from which the appeal is taken). The notice of appeal was filed on the
31st day, on November 5, 2015. However, Father attached to his appeal a
copy of the cash slip from the Commonwealth of Pennsylvania Department
of Corrections reflecting that the appeal was filed with prison authorities for
mailing on November 1, 2015. Further, the trial court, recognizing the
timeliness of the instant notice of appeal, indicated a copy postmarked
November 2, 2015, was received in chambers November 4, 2015. (Trial
court opinion, 12/4/15 at 3.) Therefore, pursuant to the prisoner mailbox
rule, the instant appeal was timely filed. See Commonwealth v. Jones,
700 A.2d 423 (Pa. 1997); Pa.R.A.P. 121(a).


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      Our standard of review of an order denying an appeal nunc pro tunc

is abuse of discretion.   In the Interest of M.S.K., 936 A.2d 103, 104

(Pa.Super. 2007).

            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.”

Id. (citation omitted).

      In order to grant an appeal nunc pro tunc an appellant must prove:

“(1) the appellant’s 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) the appellant filed the notice of appeal shortly after

the expiration date; and (3) the appellee was not prejudiced by the delay.”

Towey v. Lebow, 980 A.2d 142, 144 (Pa.Super. 2009), quoting Criss v.

Wise, 781 A.2d 1156, 1159 (Pa. 2001).         On this topic, we have further

stated:

            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.
            Where 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


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            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, 1999 PA Super
            135, 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, 566 Pa. 437, 781
            A.2d 1156 (2001).

In re Adoption of W.R., 823 A.2d 1013, 1015-1016 (Pa.Super. 2003).

      In the instant matter, in denying Father’s request for nunc pro tunc

relief, the trial court explained:

                  Appellant absented himself from the hearing
            on his Application for Leave to Appeal Nunc Pro Tunc
            before testimony was concluded and before
            presenting the evidence necessary to meet his
            burden of proof to show that he delivered the Notice
            of Appeal from the October 14, 2014 order to the
            prison authorities for mailing on or before
            November 13, 2014.        This proof was necessary
            because no copy of the Notice of Appeal was ever
            docketed, received by this court or located in the
            court file. Despite this court’s considerable efforts to
            instruct Appellant on the burden he had to meet and
            to direct that necessary witnesses appear to testify,
            Appellant exited the hearing because the court
            sought to proceed with testimony rather than first
            address issues which Appellant first wanted
            addressed.     Hence, Appellant is not entitled to
            appellate relief.

Trial court opinion, 12/4/15 at 11.




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      As argued by Mother, through counsel, the trial court properly denied

Father’s application.10   (Mother’s brief at 7-10.)   “Father failed to produce

any evidence regarding his claim, failed to rebut any evidence demonstrating

that his claim was baseless . . . , and refused to participate in scheduled

listings.” (Id. at 9-10.) We are constrained to agree with the trial court and

Mother.

      Given that Father, who is incarcerated, averred that he filed a notice of

appeal, which was subsequently not received and/or docketed by the trial

court, with prison officials on November 7, 2014, and proffered a cash slip,

although belatedly, this requires consideration of the prisoner mailbox rule.

The prisoner mailbox rule provides that an appeal by an inmate is deemed

“filed” on the date that it is deposited with prison authorities and/or placed

in the prison mailbox. Jones, 700 A.2d at 426 (noting evidence such as a

postal form 317, certificate of mailing, prison “cash slips,” and other

“reasonably verifiable evidence” will be accepted as conclusive proof that the

prisoner mailbox rule is applicable); Pa.R.A.P. 121(a) (“A pro se filing

submitted by a prisoner incarcerated in a correctional facility is deemed filed

as of the date it is delivered to the prison authorities for purposes of mailing

or placed in the institutional mailbox, as evidenced by a properly executed

prisoner cash slip or other reasonably verifiable evidence of the date that the



10
   Mother also raises procedural issues with the instant appeal.      (Mother’s
brief at 4-7.)


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prisoner deposited the pro se filing with the prison authorities.”). Hence, if

in fact delivered to prison officials on November 7, 2014, as reflected by the

late presented cash slip, Father’s notice of appeal of the trial court’s

October 14,    2014     custody   order   would   have   been   timely.   See

Pa.R.A.P. 903(a); Jones, 700 A.2d at 426; Pa.R.A.P. 121(a).

      However, the record reveals that Father removed himself from the

proceedings regarding his application for nunc pro tunc relief on both

July 20, 2015 and October 5, 2015.         In so doing, Father failed to allow

completion of the inquiry into the authenticity of his cash slip and whether

he timely provided prison authorities with his November 7, 2014 notice of

appeal of the October 14, 2014 custody order for mailing.             This was

important as Father, who admittedly did not send a copy of the notice of

appeal to the trial judge and opposing counsel, produced a cash slip, which

had not been included with his motion and attached notice, four months

after filing his motion, after denying a cash slip existed. Moreover, Father

had failed to present the original cash slip for inspection. Consequently, the

record supports a conclusion that the trial court did not abuse its discretion

in denying Father nunc pro tunc relief. As reflected, Father failed to meet

his burden of proof.

      Accordingly, based on the foregoing analysis, we affirm the trial court’s

order denying Father’s motion for leave to appeal nunc pro tunc.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2016




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