IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harry L. Bierley, :

: Appellant :

:

v. : No. 551 C.D. 2017

: Submitted: December 1, 2017 James L. Kowalski; Elizabeth : Kowalski

- Osterberg; William : Osterberg; Victoria Dougan; : Victor Kowalski; and Ruth : Kowalski :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE J. WESLEY OLER, Jr., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: March 2, 2 018

Harry L. Bierley (Appellant) , proceeding pro se , appeals from an order

of the Court of Common Pleas of Erie County , which sustained Appellees’ 1

preliminary objections in the nature of demurrer and dismissed Appellant’s
complaint w ith prejudice. Appellant challenges the dismissal claiming, among other
things, that he never received the “paperwork” from the trial court

. Appellant’s Brief

at 2. In the trial court’s supporting opinion filed pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appe llate Procedure, the trial court noted that Appellant

failed to timely file a Concise Statement of Errors Complained of on Appeal

1 Appellees are James L. Kowalski; Elizabeth Kowalski

- Osterberg; William Osterberg; Victoria Dougan; Victor Kowalski; and Ruth Kowalski.2

(Statement) pursuant to Rule 1925(b) as directed, and thus any issues raised on appeal a re waived. As a threshold matter, we must ascertain whether Appellant
preserved any issues for appellate review

.

Rule 1925(b) (1) of the Pennsylvania Rules of Appellate Procedure
provides that, if a trial court desires “clarification of the errors complained of on
appeal, it may enter an order directing the appellant to file and serve on the judge a

[Statement]. ” Pa. R.A.P. 1925(b)(1). T he trial court “shall allow the appellant at
least 21 days from the date of the order’s entry on the docket for the filing and service

of the Statement.” Pa. R.A.P. 1925(b) (2)

. Where an appellant fails to timely file a
Statement, all issues for appeal are waived. Commonwealth v. Castillo , 888 A .2d

775, 780 (Pa. 2005).

However, “[u] pon application of the appellant and for good cause

show n , the judge may enlarge the time period initially specified or permit an
amended or supplemental Statement to be filed. Pa. R.A.P. 1925(b)(2). “Good

cause inc ludes, but is not limited to, delay in the production of a transcript necessary
to develop the Statement so long as the delay is not attributable to a lack of diligence
in ordering or paying for such transcript by the party or counsel on appeal.” Id.

“ In extraordinary circumstances, the judge may allow for the filing of
a Statement or amended or supplemental Statement nunc pro tunc .” Pa. R.A.P.

1925(b)(2). In general, nunc pro tunc relief is warranted only when there has been
a breakdown in the proces s constituting “ extraordinary circumstances

. ” Criss v.

Wise , 781 A.2d 1156, 1159 (Pa. 2001). In determining whether extraordinary

circumstances exist, a court must consider whether there was fraud or a breakdown
in the court's operations or whether the p arty seeking relief has proven that:

( 1) the appellant's notice of appeal was filed late as a result of non

- negligent circumstances, either as they relate to the3 appellant or the appellant's counsel; (2) the appellant filed the notice of appeal shortly af ter the expiration date; and (3) the appellee was not prejudiced by the delay.

Id. However, w here an untimely appeal is attributable to an appellant’s own
negligence or lack of diligence , such as not providing the tribunal or postal

authorities with a change of address

, nunc pro tunc relief is not available. See
Ferraro v. Unemployment Compensation Board of Review , 464 A.2d 697, 699 (Pa.
Cmwlth. 1983) (holding that a claima nt's own delay in notifying the Office of
Unemployment Security or postal author ities of an address change d id not excuse

her late

- filed appeal); see also Constantini v. Unemployment Compensation Board

of Review (Pa. Cmwlth. , No. 1673 C.D. 201, filed November 8, 2017) (an incorrect
mailing date on a determination did not warrant nunc pro tunc relief where the
petitioner erroneously concluded that the fifteen

- day appeal period commenced on

the date she received the determination as opposed to the date of the determination

itself )

. 2

Here, the trial court entered an order on March 31, 2 017 denying
Appellant’s motion for recusal and an order on April 3, 2017 sustaining preliminary
objections in the nature of demurrer . On April 28, 2017, within the 30

- day appeal
period, Appellant filed a notice of appeal in this Court. 3

2 Section 414 of this Court's Internal Operating Procedures authorizes the citation of unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as binding precedent. 210 Pa. Code §69.414.

3 We note that the underlying matter is an action for unjust enrichment against Appellees
for care rendered to their mother. Pursuant to Section 742 of the Judicial Code, 42 Pa. C.S. §742, the Superior Court has jurisdiction over all a ppeals from orders of common pleas courts unless jurisdiction is vested in Commonwealth Court under Section 762 of the Judicial Code, 42 Pa. C.S. §762. Section 762 of the Judicial Code provides no basis upon which to conclude that jurisdiction belongs in Commonwealth Court. Notwithstanding, Appellees do not question or otherwise object4 In response , on May 17, 2017, the trial court directed Appellant to file

a Statement “within twenty

- one (21) days of the date of this Order. Any issue not
properly included in the Statement timely filed and served pursuant to the Rule shall

be deemed waived

. ” Trial Court Order, 5/17/17, at 1. However, Appellant did not

file a Statement until June 13, 2017, well beyond the 21

- day period.

Upon closer examination of the record, it appears that the trial court’s

May 17, 2017 order directing Appellant to file a State ment was returned to sender
on May 22, 2017. Certified Record (C.R.), Civil Docket, at 3. The trial court
originally sent the order to Appellant at 3123 German Street, Erie, Pennsylvania. Id.

On the returned envelope , postal authorities noted that the forward time stamp
expired and provided a forwarding address for Appellant of 242 E. 32nd Street, Erie,
Pennsylvania

. Id; C.R., Item No. 33.2 ( Returned E n velop e)

. Accordin g to the
docket, it appears that, o n May 22, 2017, the trial court forwarded its order to
Appellant at 242 E. 32 nd Street, Erie, Pennsylvania

. See C.R., Civil Docket, at 3.

On May 30, 2017, Appellant filed a request for extension of time to
respond to the May 17, 2017 order. C.R., Item No. 37.4 (Request for Time

to this Court's jurisdiction. Rule 741(a) of the Pennsylvania Rule s of Appellate Procedure provides : T he failure of an appellee to file an objection to the jurisdiction o f

an appellate court on or prior to the last day under these rules for the filing of the record shall, unless the appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of law vesting jurisdiction of such appeal in another appellate court.

Pa. R.A.P. 741(a); accord Section 704 of the Judicial Code, 42 Pa. C.S. §7 04 (a). Therefore, Appellees waived any objection to this Court's jurisdiction. See Pettko v. Pennsylvania Am erican
Water Co. , 39 A.3d 473, 476 n.2 (Pa. Cmwlth.), appeal denied , 51 A.3d 840 (Pa. 2012). In the interest of judicial economy, this Court will retain jurisdiction limited to this appeal.5

Extension). The rein, Appellant states, “For reasons unknown, he did not receive the
order until [May 24, 2017] with a postmark dated [May 23, 2017].” Id. He attached
a copy of the postmark ed envelope from the trial court

. Id. On June 13, 2017,
Appellant filed his Sta tement.

O n June 21, 2017, the trial court denied Appellant’s request for

extension without explanation

. C.R., Civil Docket, a t 4; C.R., Item No. 40.1

. On
June 28, 2017, the trial court entered its 1925(a) opinion. Therein, the trial court

concluded t hat, because Appellant filed an untimely Statement, any issues raised on appeal were waived. 4

Although Appellant did not file his 1925(b) Statement within 21 days

from the initial exit day of May 17, 2017, Appellant maintains that his late filing

should be excused because he filed it within 21 days of the remailing date of May

2 2 , 2017. Despite Appellant’s request for an extension of time, t he trial court did
not make findings of fact or provide analysis regarding whether Appellant’s
untimely Statement met the requirements for nunc pro tunc relief

. It is unclear
whether the delay wa s attributable to some breakdown in the trial court's operations
or to Appellant’s lack of due diligence by not notifying the trial court of his change

of address. Therefore , we remand to the trial court to issue a new opinion addressing

this issue , which shall contain findings of fact and conclusions in support of the grant

or denial of nunc pro tunc relief. Pa. R.A.P. 1925(c)(1) (an appellate court may

remand for a determi nation as to whether a Statement was timely filed) ; s ee, e.g., Stone Neapolitan Pizzeria, Inc. v. Pennsylvania Liquor Control Board (Pa. Cmwlth.,

4 The trial court also noted that it considered “Appellant’s ap peal to be abusive, vexatious, and repetitive.” Trial Court’s 1925(a) Opinion, 6/28/17, at 1. The trial court explained that the matter was fully litigated in a prior proceeding and, thus, the trial court sustained Appellees’ preliminary objections on th e basis of res judicata

.6

No. 19 C.D. 2017, filed September 22, 2017) (remanding to trial court to issue new
opinion addressing nunc pro tunc relief)

. If the trial court concludes that nunc pro

tunc relief is warranted, it shall address the merits of Appellant’s appeal in its
1925(a) opinion

. However, i f it concludes that nunc pro tunc relief is not warranted

, it shall remit the 1925 (a) opinion filed on June 28, 2017

.

MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harry L. Bierley, :

: Appellant :

:

v. : No. 551 C.D. 2017

: James L. Kowalski; Elizabeth : Kowalski

- Osterberg; William : Osterberg; Victoria Dougan; : Victor Kowalski; and Ruth : Kowalski :

O R D E R

AND NOW, this 2 nd day of March , 201 8

, the above

- captioned matter is
remanded to the Erie County Court of Common Pleas (trial court) for a
determination as to whether Harry L. Bierley (Appellant) is entitled to nunc pro tunc

relief in accordance with the foregoing opinion. If the trial court concludes that
Appellant is entitled to nunc pro tunc relief, the trial court shall address the merits
of Appellant’s appeal in its Pa. R.A.P. 1925(a) opinion and remit the same and the
original record to this Court within 90 days of the date of this Order

. If the trial court

concludes that nunc pro tunc relief is not warranted, and that Appellant’s Statement
was untimely filed , the trial court shall remit its 1925(a) opinion file d on June 28,

2017 along with the original record to this Court within 6 0 day s of the date of this

Order

. The Chief Clerk shall send a copy of this Order to the Honorable John

Garhart , Judge of the Erie County Common Pleas Court, to the Erie County Clerk

of Courts, and to the Erie County Prothonotary.

Jurisdiction is retained.

______________________________ MICHAEL H. WOJCIK, Judge