IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zachary Spada, :

:

Appellant :

:

v. : No. 1048 C.D. 2015

:

Donald Farabaugh and J.A. : Submitted: August 14, 2015

Farabaugh, individually :

and in their official capacities :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER FILED: November 3, 2015

Zachary Spada, pro se, appeals from the August 13, 2014 Order of the Court 

of Common Pleas of Clearfield County (trial court) that denied Spada’s Motion for

Leave to Appeal Nunc Pro Tunc (Motion) an order of the trial court filed January 

15, 2014. On appeal, Spada argues that the trial court abused its discretion in 

denying the Motion because he acted in good faith and without negligence by 

relying on certain Pennsylvania Rules of Civil Procedure and, therefore, he is 

entitled to file an appeal nunc pro tunc. Discerning no abuse of discretion, we 

affirm.
2

Spada, an inmate at the State Correctional Institution at Houtzdale (SCIHoutzdale), filed a civil action complaint (Complaint), dated December 16, 2013,

against Donald Farabaugh and J.A. Farabaugh (together, Defendants) in their 

individual and official capacities as correctional officers at SCI-Houtzdale.

1 He 

also filed an application to proceed in forma pauperis. After reviewing the 

Complaint, the trial court sua sponte dismissed the Complaint with prejudice 

pursuant to Pennsylvania Rule of Civil Procedure 240(j)(1).2In its opinion, the 

trial court concluded that the Complaint was frivolous because it lacked an 

arguable basis in either law or fact, noting, inter alia, that Spada “failed to set forth 

the elements of his claims or even the basic facts in support thereof.” (Trial Ct. 

Opinion and Order, January 15, 2014,3at 1-2.)

 

1

The Complaint averred, inter alia, that Defendants slandered him, thereby violating his 

rights under the Eighth and Fourteenth Amendments to the United States Constitution, Articles 5 

and 12 of the Universal Declaration of Human Rights, and Section 2709 of the Pennsylvania 

Crimes Code, 18 Pa. C.S. § 2709 (harassment), causing him irreparable harm. (Compl. ¶¶ 5-7, 

12-14.) 

2

Pa. R.C.P. No. 240(j)(1). This rule provides, in relevant part:

If, simultaneous with the commencement of an action or proceeding or the 

taking of an appeal, a party has filed a petition for leave to proceed in forma 

pauperis, the court prior to acting upon the petition may dismiss the action, 

proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that 

the action, proceeding or appeal is frivolous.

Id.

3

The Complaint was dated December 16, 2013 and docketed on January 15, 2014. The 

trial court’s opinion and order dismissing the Complaint with prejudice was dated January 13, 

2014 and also docketed on January 15, 2014.
3

Spada filed a “Motion for Reconsideration of Judgment and for Leave to 

Amend Complaint” (Motion for Reconsideration), dated January 17, 2014, which 

was docketed on January 29, 2014. On or about April 21, 2014, Spada filed a 

Motion to Compel Judgment on his Motion for Reconsideration. The 

Prothonotary/Clerk of Courts sent Spada a correspondence, dated May 29, 2014,

indicating that the trial court had not ruled on the Motion for Reconsideration and 

it was returning Spada’s appeal documents relating to the Motion for 

Reconsideration. (Letter from Prothonotary/Clerk of Courts to Spada (May 29, 

2014).) Subsequently, the Court Administrator sent Spada a letter dated July 29, 

2014 indicating that the trial court had received a letter from Spada dated June 19, 

2014 regarding the Motion for Reconsideration, and stating that no order or ruling 

on the Motion for Reconsideration had been made “as the time for filing an appeal 

expired some time ago,” “[t]he case is concluded and the Court’s dismissal is 

final,” and, “[a]s such, [the] Motion for Reconsideration is moot.” (Letter from 

Court Administrator to Spada (July 29, 2014).) 

Spada filed the instant Motion on or about August 1, 2014, seeking leave to 

appeal the trial court’s January 15, 2014 order nunc pro tunc. Therein, Spada 

asserted that he was entitled to nunc pro tunc relief because: he had filed the 

Motion for Reconsideration, which had not yet been ruled upon; he received 

correspondence from court officials on July 29, 2014 indicating that the Motion for 

Reconsideration was moot; and he “was previously unaware his Motion [for 

Reconsideration] had been denied.” (Motion.) 
4

The trial court denied the Motion by Opinion and Order filed August 13, 

2014. In its Opinion, the trial court noted that granting nunc pro tunc relief is 

warranted where there is evidence of fraud, a breakdown in the court’s operations, 

or non-negligent circumstances resulting in the untimely appeal. (Trial Ct. 

Opinion and Order, August 13, 2014, at 1.) According to the trial court, nunc pro 

tunc relief is not meant “‘to provide relief to parties whose counsel has not 

followed proper procedure in preserving appellate rights.’” (Trial Ct. Opinion and 

Order, August 13, 2014, at 2 (quoting Lenhart v. Cigna Companies, 824 A.2d 

1193, 1198 (Pa. Super. 2003)).) The trial court concluded that Spada did not file 

his appeal within the required time limits and did not set forth facts in the Motion 

that demonstrated a legitimate basis for nunc pro tunc relief. (Trial Ct. Opinion 

and Order, August 13, 2014, at 2.) Spada now appeals.4

 

4

Spada initially appealed to the Superior Court, which transferred the matter to this 

Court. Section 762(a)(1)(i) of the Judicial Code provides that this Court has “exclusive 

jurisdiction of appeals from final orders of the courts of common pleas in . . . Commonwealth 

civil cases . . . [in which o]riginal jurisdiction . . . is vested in another tribunal by virtue of any of 

the exceptions to section 761(a)(1) (relating to original jurisdiction).” 42 Pa. C.S. § 762(a)(1)(i).

We note that Spada seeks to appeal nunc pro tunc the trial court’s January 15, 2014 order 

to this Court via the Motion he filed with the trial court. In these situations, “[b]oth the trial 

court and our Court have jurisdiction to decide” whether a nunc pro tunc appeal is permitted, 

“and a petition to appeal nunc pro tunc may be directed to either the lower court or the appellate 

court.” Weiman by Trahey v. Philadelphia, 564 A.2d 557, 559 (Pa. Cmwlth. 1989); see also

Towey v. Lebow, 980 A.2d 142, 144 (Pa. Super. 2009) (same); G. Darlington, K. McKeon, D. 

Schuckers & K. Brown, Pennsylvania Appellate Practice § 903:3 (West 2014) (stating “[b]oth 

the trial courts and the appellate courts have jurisdiction to determine whether an appeal nunc 

pro tunc should be permitted”). 

Appellate review of a trial court’s “denial of an appeal nunc pro tunc is whether the trial 

court abused its discretion.” Union Electric Corporation v. Board of Property Assessment, 

Appeals & Review of Allegheny County, 746 A.2d 581, 583 (Pa. 2000). “An abuse of discretion 

has been defined . . . as not merely an error of judgment,” but involves a situation “where the law 

is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result 

(Continued...)
5

On appeal, Spada argues that the trial court abused its discretion in not 

allowing him to appeal nunc pro tunc because he “repeatedly and diligently 

attempted to ascertain the status of the ruling of his Motion for Reconsideration.” 

(Spada’s Br. at 4.) Citing Pennsylvania Rule of Civil Procedure 227.1, Spada 

contends that his Motion for Reconsideration was not moot because a clear-cut 

statutory right to file a post-verdict motion exists. Spada asserts that he acted in 

good faith and without negligence when no praecipe for judgment on the Motion 

for Reconsideration was filed pursuant to Pennsylvania Rule of Civil Procedure 

227.4, and he did not receive notice that his “Post-Verdict Motion,” i.e., the 

Motion for Reconsideration, had been denied as moot. (Spada’s Br. at 4.) 

Defendants respond that the January 15, 2014 order was a final order 

dismissing the Complaint with prejudice pursuant to Pennsylvania Rule of Civil 

Procedure 240(j) and, as such, Spada had to file an appeal from that order within

thirty days. Spada did not file a timely appeal, but instead filed a Motion for 

Reconsideration, which does not toll the time for filing an appeal. Defendants 

contend that Spada has not shown that his untimely appeal is the result of 

extraordinary circumstances or the fault of the trial court, but is the result of 

Spada’s misunderstanding of the Rules of Civil Procedure and, therefore, he is not 

entitled to nunc pro tunc relief.

“Allowance of an appeal nunc pro tunc lies at the sound discretion of the 

trial court.” Baker v. City of Philadelphia, 603 A.2d 686, 689 (Pa. Cmwlth. 1992)

 

of partiality, prejudice, bias or ill will, as shown by the evidence or the record.” Id. (internal 

quotation marks omitted).
6

(emphasis omitted). As a general matter, a trial court 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.” Cook v. Unemployment Compensation Board of Review, 671 A.2d 

1130, 1131 (Pa. 1996) (internal quotation marks omitted). Our Supreme Court has 

further explained that

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 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.

Id. “The exception for allowance of an appeal nunc pro tunc in non-negligent 

circumstances is meant to apply only in unique and compelling cases in which the 

appellant has clearly established that [he] attempted to file an appeal, but 

unforeseeable and unavoidable events precluded h[im] from actually doing so.” 

Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001). 

There is no question that the trial court’s January 15, 2014 order disposed of 

the Complaint in its entirety with prejudice and, as such, constituted a final order. 

See Pennsylvania Rule of Appellate Procedure 341(b)(1), Pa. R.A.P. 341(b)(1)

(defining a final order, in pertinent part, as one that “disposes of all claims and of 

all parties”). Therefore, pursuant to Pennsylvania Rule of Appellate Procedure 

903(a), Pa. R.A.P. 903(a), Spada had to file his notice of appeal within 30 days 

after the January 15, 2014 order. However, Spada did not file his Motion until 

August 1, 2014, almost six months after the appeal period had expired. 
7

Spada filed a Motion for Reconsideration, which he was permitted to do 

under the rules at any time during the thirty day time period that a trial court 

retains jurisdiction following the issuance of a final order. Fulton v. Bedford 

County Tax Claim Bureau, 942 A.2d 240, 242 n.3 (Pa. Cmwlth. 2008). However, 

if a trial court does not issue an order expressly granting reconsideration within 

thirty days of the final order, it loses the power to act upon the motion for 

reconsideration and its original order becomes final. Lichtman v. Glazer, 111 A.3d 

1225, 1229-30 (Pa. Cmwlth. 2015). A trial court has no obligation to act on a 

motion for reconsideration and its inaction “has the effect of a denial.” Id. at 1230

(citing Pennsylvania Rule of Appellate Procedure 1701(b)(3)(ii) and Note, Pa. 

R.A.P. 1701(b)(3)(ii) and Note). The trial court chose not to act on Spada’s 

Motion for Reconsideration, dated January 17, 2014 and docketed January 29, 

2014, and lost jurisdiction to do so on February 14, 2014. As noted by the Court 

Administrator’s July 29, 2014 letter, when the appeal period expired, the Motion 

for Reconsideration became moot; this is because the trial court no longer had 

jurisdiction to reconsider the January 15, 2014 order and the dismissal of the 

Complaint was final. Moreover, Spada’s filing of the Motion for Reconsideration 

did not stop the thirty day appeal period from running, and he had to file his appeal 

within that thirty day period. 

Spada relies on Civil Rules 227.1 and 227.4 to argue, essentially, that his 

appeal should have been accepted nunc pro tunc because he filed the Motion for 

Reconsideration as a “Post-Verdict Motion” and, despite his efforts, he did not 

know the trial court had dismissed the Motion for Reconsideration as being moot

until July 29, 2014. (Spada’s Br. at 4.) However, because the January 15, 2014 
8

order dismissed the Complaint without a trial or other evidentiary proceeding that 

would constitute a trial, these civil rules requiring the filing of post-trial motions 

do not apply. See Pa. R.C.P. No. 227.1(b)(2), (c) (entitled “Post-Trial Relief” and

requiring motions to be filed within ten days of the “verdict . . . in the case of a 

jury trial” or “the decision in the case of a trial without jury” (emphasis added));

Pa. R.C.P. No. 227.1(c), Note (stating that “[a] motion for post-trial relief may not 

be filed to orders disposing of preliminary objections, motions for judgment on the 

pleadings or for summary judgment, . . . or other proceedings which do not 

constitute a trial” (emphasis added)). The trial court reviewed the Complaint,

concluded that the Complaint was frivolous5and had no merit as a matter of law, 

and dismissed the Complaint with prejudice as permitted by Pennsylvania Rule of 

Civil Procedure 240(j). Because there was no trial or trial equivalent, Spada was 

neither required to file, nor did he file, a post-trial motion; therefore, Spada’s 

assertion that nunc pro tunc relief is warranted because he did not know that the 

trial court did not rule on his “Post-Verdict Motion” is not correct.

We are also unpersuaded by Spada’s reliance on Civil Rule 227.4(b), which 

authorizes, in relevant part, a “prothonotary to enter judgment upon praecipe of a 

party . . . upon a nonsuit by the court, the verdict of a jury or the decision of a 

judge following a trial without jury, if . . . [a] timely post-trial motion is filed” and 

 

5 An action is “frivolous” for the purposes of Rule 240(j) if it “‘lacks an arguable basis 

either in law or in fact.’” Bailey v. Wakefield, 933 A.2d 1081, 1083 (Pa. Cmwlth. 2007) 

(quoting Pa. R.C.P. No. 240, Note). “An action is frivolous under this provision, if, on its face, it 

does not set forth a valid cause of action.” Id. at 1083-84. Section 6602(e)(2) of the Prison 

Litigation Reform Act likewise indicates that a trial court should “dismiss prison conditions 

litigation at any time . . . if the court determines,” inter alia, that the litigation “is frivolous or . . . 

fails to state a claim upon which relief may be granted.” 42 Pa. C.S. § 6602(e)(2).
9

the trial court does not issue an order within 120 days after the filing of the motion. 

Pa. R.C.P. No. 227.4(b). As stated previously, there was no trial in this matter and, 

therefore, there was no verdict or decision from which post-trial motions could be 

filed to begin the running of the 120-day period set forth in Civil Rule 227.4(b). 

The fact that Spada filed the Motion for Reconsideration before the appeal period 

expired, which the trial court chose not to rule upon, does not render Civil Rule 

227.4(b) applicable.

After reviewing Spada’s assertions, we conclude, as the trial court did, that 

the circumstances here do not warrant the extraordinary relief of a nunc pro tunc

appeal.6 Spada’s untimely appeal is the result of his not understanding the 

procedure required to preserve his appellate rights. “The grant of nunc pro tunc

relief is not designed to provide relief to parties who[] . . . [have] not followed 

proper procedure in preserving [their] appellate rights.” Lenhart, 824 A.2d at 

1197-98. Although Spada blames the trial court and court officials for not 

responding to the Motion for Reconsideration or giving him notice that it had been 

denied, the trial court was under no obligation to rule on the Motion for 

Reconsideration, did not do so, and lost jurisdiction to do so thirty days after the 

January 15, 2014 order. Spada apparently did not understand that the filing of a 

Motion for Reconsideration does not stop the appeal period from running. This is 

not a situation where “the appellant has clearly established that [he] attempted to 

 

6 Although the trial court initially referred to Spada’s request as one to file post-trial 

motions nunc pro tunc, the Motion requests the right to file an appeal from the trial court’s 

January 15, 2014 order nunc pro tunc. (Trial Ct. Opinion and Order, August 13, 2014, at 1.) 

However, the trial court applied the correct standard for nunc pro tunc relief and ultimately 

concluded that the circumstances did not warrant granting Spada’s Motion, which requested 

relief to appeal nunc pro tunc. (Trial Ct. Opinion and Order, August 13, 2014, at 1-2.)
10

file an appeal, but unforeseeable and unavoidable events precluded h[im] from 

actually doing so.” Criss, 781 A.2d at 1160.

Accordingly, we affirm the trial court’s Order denying Spada’s Motion. 

________________________________

 RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zachary Spada, :

:

Appellant :

:

v. : No. 1048 C.D. 2015

:

Donald Farabaugh and J.A. :

Farabaugh, individually :

and in their official capacities :

O R D E R

NOW, November 3, 2015, the Order of the Court of Common Pleas of 

Clearfield County, entered in the above-captioned matter, is hereby AFFIRMED. 

________________________________

 RENÉE COHN JUBELIRER, Judge