J-A23024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ROBERT A. HALL, ADMINISTRATOR OF THE ESTATE OF DAVID JONATHAN HALL AND THE ESTATE OF DAVID JONATHAN HALL IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v. 21ST CENTURY PREFERRED INSURANCE COMPANY Appellant No. 1548 WDA 2014

Appeal from the Order September 10, 2014 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 11-010190

BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J

. MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 07, 2015
21 st Century Preferred Insurance Company (21 st Century), formerly AIG Preferred Insurance Company, appeals from the o rder of the Court of Common Pleas of Allegheny County that denied its mo tion for leave to perfect post-trial motion or alternatively to allow filing and service of new post-trial motion nunc pro tunc . After careful review, we affirm the order of the trial court, although for reasons different fro m those set forth by the trial

court. On June 3, 2011, Robert Hall, Administrator of the Estate of David Jonathan Hall and the Estate of David Jonathan Hall (Hall) filed a declaratory judgment and breach of contract action against 21 st Century for failure toJ-A23024-15

- 2 -

provide UIM coverage. Hall and 21 st Century both filed motions for summary judgment, which the court denied on April 8, 2013. On January 13, 2014, following a non-jury trial, t he court issued an order directing 21 st Century to provide UIM coverage to Hall. On Janua ry 21, 2014, 21 st Century electronically filed a motion for post-tri al relief requesting a new trial or entry of a declaratory ju dgment n.o.v. 21 st Century failed to serve the trial court with a true and cor rect copy of the post-trial motion in violation of Pa.R.C.P. 227.1(f) and Alleg heny County Local Rule 227.1(a). After 120 days passed without the trial court taki ng action on the posttrial motion, Hall filed a praecipe for entry of ju dgment on May 28, 2014, pursuant to Pa.R.C.P. 227.4(1)(b). On June 5, 2014, 21 st Century filed a notice of appeal to this Court, which was docketed at 914 WDA 2014. On August 15, 2014, the trial court issued a statement in lieu of opinion in which it n oted that because 21 st Century had not served a copy of its motion on the court, the court had no knowledge of the motion and never ruled on it. The court concluded that because “it was not provided the means to address i ssues post-trial, this [c]ourt cannot now address those issues.” Statemen t in Lieu of Opinion, 8/15/14, at 1-2. 1

____________________________________________
1 On October 7, 2014, this Court dismissed 21 st Century’s appeal. Following this Court’s denial of 21 st Century’s application for reconsideration and en (Footnote Continued Next Page)J-A23024-15

- 3 -

On August 27, 2014, after 21 st Century became aware of its failure to serve a copy of its post-trial motion on the court, it filed a motion for leave to perfect post-trial motion or alternatively to al low filing and service of new post-trial motion nunc pro tunc . The trial court denied the motion on September 10, 2014.
21 st Century filed a timely notice of appeal on Septemb er 22, 2014, and on September 26, 2014, the trial court filed a statement in lieu of opinion. On appeal, 21 st Century raises three issues, only one of which we will address:
Whether the trial court erred and abused its discre tion by denying [21 st Century’s] motion for leave to perfect post-trial motion or alternatively to allow filing and service of new posttrial motion nunc pro tunc and to grant post-trial relief, as the trial court had jurisdiction and was not prohibited by Rule 227.4(1)(b) from granting the requested relief, in that any noncompliance with Rule 227.1(f) was inadvertent, m erely technical and non-negligent happenstance, [Hall] wa s not prejudiced, nunc pro tunc relief was timely sought, and, the harsh sanction of waiver was unjust. Appellant’s Brief, at 4. 2 Pa.R.C.P. 227.4 provides, in relevant part:

(Footnote Continued) _______________________ banc reargument, 21 st Century filed a petition for allowance of appeal, which our Supreme Court denied on April 28, 2015.

2 21 st Century’s remaining issues relate to the denial of summary judgment, which we need not address in light of our dispositi on of 21 st Century’s request for nunc pro tunc relief.J-A23024-15

- 4 -

Rule 227.4 Entry of Judgment upon Praecipe of a Pa rty [T]he prothonotary shall, upon praecipe of a party: (1) enter judgment upon . . . the decision of a judge f ollowing a trial without a jury, if

. . . (b) one or more timely post-trial motions are file d and the court does not enter an order disposing of all moti ons within one hundred and twenty days after the filing of the fir st motion. A judgment entered pursuant to this subparagraph shal l be final as to all parties and all issues and shall not be subj ect to reconsideration. Pa.R.C.P. 227.4. With respect to this Rule, our Court has held: In view of the language of Rule 227.4(1)(b) and the explanatory comment, it is clear that once the requisite 120 da y period runs and a party opts to praecipe for the entry of judgm ent, the judgment becomes final, and immediately appealable when entered on the docket. . . . It is equally clear th at the judgment is not subject to either reconsideration or any oth er motion to strike, open or vacate. Conte v. Hahnemann University Hospital , 707 A.2d 230, 231 (Pa. Super. 1998). In its statement in lieu of opinion in support of the denial of 21 st Century’s motion for leave to perfect post-trial mo tion or alternatively to allow filing and service of new post-trial motion nunc pro tunc , the trial court relied on Rule 227.4(1)(b) and Conte . Although not expressly stated by the trial court, it appears to have determined that it did not have jurisdiction to consider the request for nunc pro tunc relief. We disagree.J-A23024-15

- 5 -

21 st Century’s August 21, 2014 motion did not seek reco nsideration of the entry of judgment nor did it seek to strike, op en or vacate the judgment. Rather, 21 st Century sought nunc pro tunc post-trial relief to perfect or refile its post-trial motion.
In Freeman v. Bonner , 761 A.2d 1193 (Pa. Super. 2000), this Court held that a trial court has jurisdiction to grant nunc pro tunc relief even after judgment is entered. The appellant in Freeman filed a post-trial motion to remove a nonsuit but did not file a memorandum of l aw and took no further action. The appellee entered judgment by praecipe 120 days later because the court did not rule on the motion. No appeal wa s taken from the judgment, and the appellee subsequently filed a pra ecipe to discontinue. Two days later, the appellant filed a post-trial mo tion nunc pro tunc , requesting removal of the nonsuit and the grant of a new trial. The trial court denied the motion, holding that pursuant to R ule 227.4(1)(b), it did not have jurisdiction to consider the motion. Recognizing that under Rule 227.4(1)(b) a judgment is final and appealable once entered and cannot be reconsidered, this Court noted: The correct procedure upon entry of such judgment w ould be for the aggrieved party to appeal the judgment and have the merits of the outstanding Post-Trial Motions addressed by the appellate court “as if the [trial] court had ruled” on the mo tions. Gibbs v. Herman , 714 A.2d 431 (Pa. Super. 1998). Freeman , supra , at 1195. Because Rule 227.4(1)(b) does not prohibit the tri al court from reinstating a party’s right to relief, nunc pro tunc , the Freeman CourtJ-A23024-15

- 6 -

proceeded to analyze whether the trial court abused its discretion in denying the appellant’s motion. In so doing, it applied th e following principles: “As a general rule, an appeal nunc pro tunc is only granted in civil cases where there was fraud or a breakdown in the court’s operations.” Lee v. Guerin , 735 A.2d 1290, 1281 (Pa. Super. 1999) (citing West Penn Power v. Goddard , 333 A.2d 909 (Pa. 1975). “In recent years, however, the courts have somewhat liberalized this rigid standard.” Id. In Bass v. Commonwealth , 401 A.2d 1133 (Pa. 1979), the Pennsylvania Supreme Court created “a new ground for an appeal nunc pro tunc , i.e. non-negligent happenstance.” In re In the Interest of C.K

. , 535 A.2d 634, 637 (Pa. Super. 1987). Freeman , supra at 1195. Therefore, as in Freeman , we must determine whether 21 st Century’s actions constitute non-negligent happenstance that justifies nunc pro tunc relief. We find guidance for this determination in Criss v. Wise , 781 A.2d 1156 (Pa. 2001), where our Supreme Court noted: The exception for allowance of an appeal nunc pro tuncin nonnegligent circumstances is meant to apply only in u nique and compelling cases in which the appellant has clearly established that she attempted to file an appeal, but unforesee able and unavoidable events precluded her from actually doin g so. See Cook [v. Unemployment Comp. Bd. of Review] , 671 A.2d [1130,] 1132 [Pa. 1996]; Perry v. Unemployment Comp. Bd. of Review , 459 A.2d 1342, 1343 (Pa. Cmwlth. 1983) (fact that law clerk’s car broke down while he was on route to the post office, precluding him from getting to the post off ice before closing time, was a non-negligent happenstance for granting appeal nunc pro tunc ); Tony Grande, Inc. v. Workmen’s Comp. Appeal Bd. (Rodriquez) , 455 A.2d 299, 300 (Pa. Cmwlth. 1983) (hospitalization of appellant’s attor ney for unexpected and serious cardiac problems ten days in to twenty day appeal period was reason to allow appeal nunc pro tunc ); Walker v. Unemployment Comp. Bd. of Review , 461 A.2d 346, 347 (Pa. Cmwlth. 1983) (U.S. Postal Service’s failure to forward notice of referee’s decision to appellant’s address, asJ-A23024-15

- 7 -

appellant had requested, warranted appeal nunc pro tunc ). But cf. In re In the Interest of C.K. , 535 A.2d 634, 639 (Pa. Super. 1987) (appeal nunc pro tunc denied where counsel was absent from office and did not learn of appellant’s desire to appeal before expiration period because counsel neg ligently failed to make arrangements to look over his profes sional obligations); Moring v. Dunne , 493 A.2d 89, 92-93 (Pa. Super. 1985) (although death of appellant’s attorney may h ave qualified as a non-negligent circumstance, appellant failed t o prove that he attempted to appeal on time but was precluded fr om doing so as a result of receiving late notice of his attorne y’s death). Criss , supra at 1160. Here, 21 st Century’s failure to serve the court with the post -trial motion was not the result of unforeseeable and unav oidable events. Rather, it was the result of not following the dictates of Pa.R.C.P. 227.1(f) (“The party filing a post-trial motion shall serve a copy promptly upon every other party to the action and deliver a copy to the trial judge .”) (emphasis added) and Allegheny County Local Rule 227.1(1)(a) (Post-T rial Motions shall be filed in the Office of the Prothonotary and a copy shall be delivered to the trial judge .”) (emphasis added). Accordingly, counsel’s actions do not constitute n on-negligent happenstance, and 21 st Century has failed to establish entitlement to rel ief. 3 Order affirmed. Motion to Quash denied.

____________________________________________ 3 The June 5, 2014 notice of appeal did not divest t he trial court of jurisdiction to consider 21 st Century’s motion for nunc pro tunc relief. See Pa.R.A.P. 1701(c) (“Where only a particular item, c laim or assessment . . . is involved in an appeal . . . the appeal shall operat e to prevent the trial court from proceeding further with only such item, claim or assessment.”).J-A23024-15

- 8 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/7/2015