IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wilmington Township :

 :

v. : No. 457 C.D. 2019

 : Argued: February 10, 2020

Carrie Hahn, :

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: March 2, 2020

Carrie Hahn (Appellant) appeals from the March 19, 2019 Order of the Court 

of Common Pleas of Lawrence County (common pleas), which granted a Motion to 

Strike (Motion) filed by Wilmington Township (Township), striking Appellant’s 

Petition to Enforce a Final Determination of the Office of Open Records (OOR) from 

the record with prejudice. Appellant asks this Court to vacate the Order and remand 

the matter for common pleas to hold an evidentiary hearing regarding whether 

Appellant’s former counsel had authority to consent on her behalf to a settlement 

agreement that resulted in the underlying action being discontinued. Because 

Appellant’s Petition to Enforce was filed more than 30 days after the underlying 

matter was voluntarily discontinued by Township, common pleas determined it 

lacked jurisdiction to hear it and, accordingly, granted Township’s Motion and 
2

struck Appellant’s Petition to Enforce. Upon review, we affirm the Order to the 

extent it granted Township’s Motion and struck Appellant’s Petition to Enforce but 

we reverse the Order to the extent it dismissed the matter with prejudice. Upon 

remand of the matter, common pleas should permit Appellant to file a motion to 

strike the discontinuance that conforms to the applicable rules within 30 days.

I. BACKGROUND

The relevant procedural and factual history of this case is recounted by 

common pleas in its opinion issued pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(a), Pa.R.A.P. 1925(a), as follows:

The instant appeal has its genesis in a request for public records 

under the Right-to-Know Law[1](RTKL) . . . filed by [Appellant] with 

Township beginning on October 26, 2017. . . . Specifically, [Appellant]

sought from Township “invoices for Professional Service [sic] from 

Louis M. Perrotta, P.C.” Township’s solicitor, for the period spanning 

January 29, 2016 to October 31, 2017. [] Township, after invoking a 

thirty-day extension pursuant to [Section 902 of the RTKL,] 65 P.S. 

§ 67.902, responded on November 29, 2017, by granting [Appellant]’s

request in part and denying it in part by redacting portions of the 

invoices that it claimed were protected by attorney-client privilege and 

work-product doctrine. []

Dissatisfied with the redactions and the grounds for them 

asserted by Township, [Appellant] appealed to the [OOR] on December 

7, 2017. [] The OOR, after performing an in camera review of the 

original, unredacted versions of the disputed records, rendered its Final 

Determination on January 12, 2018, which both affirmed and denied 

Township’s redactions. [] Importantly, the OOR required Township 

to rescind many redactions for what it considered routine information 

unprotected by attorney-client privilege or work-product doctrine; 

however, the OOR still permitted Township to keep dozens of 

redactions for these same reasons. [] Now the aggrieved party, 

Township elected to petition [common pleas] for judicial review of the 

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
3

OOR’s [Final D]etermination, as permitted by the RTKL, which it did 

on March 22, 2018. . . . 

By order dated April 3, 2018, [common pleas] scheduled 

Township’s appeal first for a status conference on June 25, 2018. At 

that time, [Appellant] lacked an attorney of record, and acted as a pro 

se litigant. However, as the status conference drew nigh, Terry 

Mutchler, Esq., filed a Praecipe for Entry of Appearance as counsel for 

[Appellant] on June 22, 2018. Three days later, on the date the status 

conference was to take place, counsel for Township advised [common 

pleas] that a settlement had been reached and contemporaneously filed 

a Praecipe to Discontinue with the Prothonotary of Lawrence County, 

which stated that “[the] parties have reached a settlement in the abovecaptioned matters. Kindly discontinue the above-captioned matters 

with prejudice.” The Prothonotary, upon receipt of the praecipe, 

accordingly marked the case discontinued with prejudice.

For eight months following Township’s Praecipe to Discontinue, 

nothing was filed of record in this case. Then, on February 21, 2019, 

[Appellant] filed what she styled a “Petition to Enforce Determination 

of Office of Open Records” (Petition to Enforce) alongside a Notice of 

Pro Se Appearance. [Appellant] next appeared, and again did so pro 

se, . . . at motion court on February 25, 2019, to present a motion to 

consolidate this case . . . with another OOR appeal pending with 

[common pleas] . . . . [Common pleas] inquired of [Appellant] whether 

she had provided proper notice to opposing counsel prior to presenting 

her motion and whether Attorney Mutchler remained [Appellant]’s 

counsel of record. [Appellant] replied that she had not provided the 

appropriate notice to Township’s counsel and that she had not had much 

recent contact with her counsel of record. [Common pleas] declined to 

entertain [Appellant]’s motion and instead advised her to provide the 

necessary notification to Township’s counsel and to have Attorney 

Mutchler withdraw her appearance before attempting presentation of 

her consolidation motion a second time.

Thereafter, Attorney Mutchler submitted a Petition to Withdraw 

her appearance on February 28, 2019, which [common pleas] granted 

by order dated March 13, 2019. Township’s counsel and [Appellant], 

pro se, next appeared at motion court on March 13, 2019, this time 

before [a different judge], when Township presented a Motion to Strike 

Petition to Enforce. Township argued, essentially, that [Appellant]’s 

petition should be stricken because the settlement agreement, 

memorialized by the extant Praecipe to Discontinue, had been 
4

concluded by her attorney with her consent. [Appellant], opposing 

Township’s Motion to Strike, attacked the validity of the Praecipe to 

Discontinue by asserting that Attorney Mutchler did not have her 

permission to enter into a settlement agreement in June 2018, and 

further offered to provide [the presiding judge] written copies of her 

email correspondence with Attorney Mutchler to substantiate this 

claim. [The presiding judge] declined to accept these emails on the 

basis that doing so would violate attorney-client privilege and, after 

concluding the hearing and taking the matter under advisement, 

transferred the decision on the Motion to Strike to the [judge who 

initially handled the matter].[]

[Common pleas], then, on March 19, 2019, issued the Opinion 

and Order now on appeal before the Commonwealth Court. [The] order 

granted Township’s Motion to Strike and struck [Appellant]’s Petition 

to Enforce from the record, with prejudice, on the basis that [common 

pleas] lacked any jurisdiction to proceed. In the accompanying opinion, 

[common pleas] cited and discussed Section 5505 of the Judicial Code, 

42 Pa.[]C.S. §[]5505, and Freidenbloom v. Weyant, 814 A.2d 1253, 

1255 (Pa. Super. 2003), overruled on other grounds, Miller Electric 

Company v. DeWeese, 907 A.2d 1051 (Pa. 2006), for the proposition 

that once 30 days elapse following the trial court’s entry of a final order 

in a case, the trial court loses jurisdiction. Accordingly, because the 

Praecipe to Discontinue was entered on June 25, 2018, [common pleas] 

was divested of jurisdiction over this case on July 25, 2018, nearly 

seven months before [Appellant] filed her Petition to Enforce.

[Appellant] then filed with the Commonwealth Court a “Petition 

for Permission to Appeal Nunc Pro Tunc” on April 18, 2019. The 

Commonwealth Court, by an April 29, 2019 order of the Honorable 

Judge Patricia A. McCullough, treated this petition as [Appellant]’s 

Notice of Appeal regarding [common pleas’] Order of March 19, 2019. 

Township next came before [common pleas] on May 14, 2019, with a 

Motion to Quash [Appellant]’s appeal. [Common pleas] then denied 

this motion through an order issued on May 17, 2019, on the basis that, 

once again, [it] lacked jurisdiction to act due to the aforementioned 

Praecipe to Discontinue and the additional grounds of Pa.[]R.A.P. 

1701(a). In the same order, [common pleas] directed [Appellant] to 

perfect her appeal in accordance with Pa.[]R.A.P. 904 and file a 

Concise Statement of [Errors] Complained of on Appeal (Concise 

Statement). On May 31, 2019, [Appellant’s current counsel] filed a 

Praecipe for Entry of Appearance on behalf of [Appellant] and 

additionally submitted a corrected notice of appeal. Lastly, on June 5, 
5

2019, [Appellant], through her counsel, provided [common pleas] with 

her Concise Statement.

(Common Pleas’ 1925(a) Opinion (Op.) at 2-6 (citations and footnote omitted).) 

In Appellant’s Concise Statement, Appellant raised three issues. First, 

Appellant asserted that common pleas erred in not holding a hearing to accept 

evidence on whether Appellant’s former counsel had the authority to settle with 

Township on Appellant’s behalf. Second, Appellant asserted that if common pleas 

was without jurisdiction, as it concluded, then common pleas “was powerless to 

proceed beyond dismissal for want of authority” and, therefore, “the Order 

dismissing the Petition to Enforce was a nullity.” (Concise Statement ¶¶ 31-32.) 

Third and finally, Appellant asserted common pleas abused its discretion by 

dismissing her Petition to Enforce with prejudice. Specifically, Appellant 

maintained “[t]he underlying issue is the validity of the ostensible settlement” and 

that Appellant “filed a Motion to Enforce Order instead of a mandamus action.” (Id.

¶¶ 33-34.) Appellant further asserted that “[i]nstead of dismissing [Appellant]’s 

Petition to Enforce [] with prejudice, [common pleas] should have, at most, 

dismissed her action without prejudice” and that “[d]ismissal without an opportunity 

to amend the form of the action and to add parties was an abuse of discretion.” (Id.

¶¶ 36-37 (citing Rule 1033(a) of the Pennsylvania Rules of Civil Procedure, 

Pa.R.C.P. No. 1033(a); Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014)).) 

In its opinion in response to Appellant’s Concise Statement, common pleas 

stated that a plaintiff may voluntarily discontinue an action by filing a praecipe 

pursuant to Rule 229(a) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 

229(a). Common pleas further stated:

Praecipes to discontinue have been historically regarded by our 

appellate courts as the equivalent of a final order disposing of all claims 
6

and parties in a case; “between the parties to the action, [a praecipe to 

discontinue] is conclusive as to the cause of action asserted therein.” 

Sustrik v. Jones & Laughlin Steel Corp., 197 A.2d 44, 46 (Pa. 1964). 

These praecipes, then, fit squarely within the larger universe of final 

orders that “end the litigation or dispose of the entire case.” Patton v. 

Hanover Ins[.] Co., 612 A.2d 517, 518 (Pa. Super. 1992). See also

Pa.[]R.A.P. 341(b) (discussing that for purposes of appealability, a final 

order is “any order that disposes of all claims and of all parties . . .”). It 

is axiomatic, therefore, that a praecipe to discontinue filed by a plaintiff 

as to all defendants is equivalent to a final order that ultimately 

terminates the case at the trial court level.

(Common Pleas’ 1925(a) Op. at 8.) 

Common pleas then reasoned that Section 5505 of the Judicial Code2 provides 

that a final order may only be modified or rescinded by a trial court within 30 days 

of its entry and a trial court loses jurisdiction outside that window. (Id.) Common 

pleas recognized, “as with many rules, exceptions apply,” and a trial court may 

modify a final order beyond 30 days if there is “‘a showing of extrinsic fraud, lack 

of jurisdiction over the subject matter, a fatal defect apparent on the face of the 

record or some other evidence of extraordinary cause justifying intervention by the 

court.’” (Id. at 8-9 (quoting ISN Bank v. Rajaratnam, 83 A.3d 170 (Pa. Super. 

2013)).) Common pleas also noted that, “[b]esides Section 5505, which applies 

generally to the modification or rescission of all final orders, a more specific rule 

governs striking a praecipe to discontinue,” namely Pa.R.C.P. No. 229(c). (Common 

Pleas’ 1925(a) Op. at 9.) Rule 229(c) provides “[a] court, upon petition and after 

notice, may strike off a discontinuance in order to protect the rights of any party 

from unreasonable inconvenience, vexation, harassment, expense, or prejudice.” 

 

2 Section 5505 provides: “[e]xcept as otherwise provided or prescribed by law, a court 

upon notice to the parties may modify or rescind any order within 30 days after its entry, 

notwithstanding the prior termination of any term of court, if no appeal from such order has been 

taken or allowed.” 42 Pa. C.S. § 5505.
7

Pa.R.C.P. No. 229(c). Common pleas stated that striking discontinuances obtained 

by fraud, mistake, or imposition has been generally favored by appellate courts. 

(Common Pleas’ 1925(a) Op. at 9.) However, “[e]ven if fraud, mistake, or 

imposition are present, . . . a trial court must still apply a balancing test when 

considering granting or striking a discontinuance, in which it must ‘consider all facts 

and weigh equities . . . [and] consider the benefits or injuries which may result to the 

respective sides. . . [.]’” (Id. (quoting Foti v. Askinas, 639 A.2d 807, 808 (Pa. Super. 

1994)).) Common pleas found “[t]his is especially true when the request to strike a 

discontinuance comes after significant time has elapsed since its entry.” (Id. (citing 

Murdoch v. Murdoch, 210 A.2d 490 (Pa. 1965), and Baumgartner v. Whinney, 39 

A.2d 738 (Pa. Super. 1944)).)

Common pleas explained its Order in the instant matter as follows:

[T]he entry of Township’s Praecipe to Discontinue, i.e.[,] the final 

order in this case, started the countdown on the 30-day period 

established by 42 Pa.[]C.S. §[ ]5505. When no requests for 

modification or rescission were made within 30 days, and later when 

no requests were made for striking the discontinuance for good cause 

under Pa.[]R.C.P. No. 229(c), [common pleas] presumptively lost 

jurisdiction over this case.

(Common Pleas’ 1925(a) Op. at 10.) 

Common pleas recognized Appellant’s argument regarding the settlement and 

stated “[s]uch an allegation would likely fall within the judicially carved exception 

to Section 5505 and Pa.[]R.C.P. No. 229(c).” (Id. at 10-11.) It further acknowledged 

this Court’s precedent requiring an evidentiary hearing to be held when a party 

disputes the validity of a settlement for lack of authority. (Id. at 11 (citing Brannam 

v. Reedy, 906 A.2d 635, 641 (Pa. Cmwlth. 2006)).) However, common pleas

concluded that it may not schedule a hearing sua sponte. Instead, common pleas 
8

stated “a party must make a motion for the court to act and set forth the appropriate 

grounds for doing so, which may then prompt an evidentiary hearing.” (Id. (citing 

Rule 208.4(a)(2)(v) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No.

208.4(a)(2)(v)3).) 

Common pleas also stated that “[a] motion to strike a discontinuance based 

on a lack of an attorney’s settlement authority must [] comply with the appropriate 

rules of procedure the same as any other motion,” including the Pennsylvania Rules 

of Civil Procedure and Lawrence County’s Local Rules of Civil Procedure, which 

Appellant’s Petition to Enforce did not do. (Id.) Common pleas also found that 

Appellant “failed to plainly and adequately develop the material facts . . . underlying 

her requested relief aside from a cursory mention of her attorney’s lack of settlement 

authority.” (Id. at 11-12.) Common pleas acknowledged that Appellant, at the time, 

was proceeding pro se, but stated the courts still require a pro se litigant to comply 

with the applicable rules. (Id. at 12.) Finally, common pleas noted that nearly eight 

months had passed since the Praecipe to Discontinue was filed before Appellant filed 

the Petition, “which raises serious questions if she had presented her claims of her 

attorney’s lack of settlement authority within [a] ‘reasonable time.’” (Id.) 

 

3 Rule 208.4 of the Pennsylvania Rules of Civil Procedure governs motions practice. The 

provision cited by common pleas provides:

(a) At the initial consideration of a motion, the court may enter an order that 

. . .

(2) sets forth the procedures the court will use for deciding the motion which 

may include one or more of the following:

. . .

(v) the holding of an evidentiary hearing[.]

Pa.R.C.P. No. 208.4(a)(2)(v).
9

“In sum,” common pleas concluded, “the combination of [Appellant]’s failure 

to adhere to the applicable rules of procedure and develop a factual background for 

striking the [dis]continuance, the length of time elapsed since the Praecipe to 

Discontinue, and the attendant presumptive loss of jurisdiction all factored into” 

common pleas’ decision to grant the Motion to Strike and dismiss Appellant’s 

Petition to Enforce with prejudice. (Id.)

II. PARTIES’ ARGUMENTS

On appeal to this Court,4 Appellant reasserts the same issues she raised in her 

Concise Statement: (1) whether common pleas erred in not holding an evidentiary

hearing to determine if Appellant’s former counsel had the authority to settle with 

Township on Appellant’s behalf; (2) whether common pleas erred by striking the 

Petition to Enforce if it was without jurisdiction; and (3) whether common pleas 

abused its discretion by dismissing the Petition to Enforce with prejudice. 

Appellant argues as follows. When the question of an attorney’s authority to 

settle a matter is raised, a court must hold an evidentiary hearing whether a party 

expressly requests one or not. Common pleas could not rely on the Praecipe to 

Discontinue because its validity was what Appellant was challenging. Assuming 

common pleas was correct that it lost jurisdiction over the matter once 30 days 

passed from entry of the Praecipe to Discontinue, it was also without jurisdiction to 

act on Township’s Motion to Strike and to strike Appellant’s Petition to Enforce. 

As a result, common pleas’ Order was a nullity. Appellant acknowledges that the 

 

4 Our review is limited to determining whether common pleas abused its discretion or 

committed an error of law. Thanhauser v. Douglass Township, 190 A.3d 786, 791 n.5 (Pa. 

Cmwlth. 2018) (citing Fraternal Order of Police, White Rose Lodge No. 15 v. City of York, 708 

A.2d 855, 857 (Pa. Cmwlth. 1998)).
10

proper manner to seek enforcement of a final determination by the OOR against a 

local agency is to institute an action in mandamus. Thus, her Petition to Enforce 

was also a nullity. However, instead of treating it as a nullity, common pleas

concluded “it was without jurisdiction to rule on it due to the filing of the Praecipe 

to Discontinue, which, sub silentio, affirmed the underlying settlement without an 

evidentiary hearing, all of which was an abuse of discretion and in violation of 

binding case law.” (Appellant’s Brief (Br.) at 16.) Appellant asserts:

The purpose of the Petition to Enforce was to compel [] Township to 

produce the records requested in the form ordered by the OOR. 

Encompassed within the Petition to Enforce is [a] challenge to the 

validity of the settlement agreement underlying the Praecipe to 

Discontinue. The Praecipe to Discontinue and the settlement are 

inextricably intertwined and one cannot exist independent of the other. 

Absent a valid settlement, Township did not have the authority to forfeit 

[Appellant]’s legal right to the Billing Invoices as per the OOR.

(Id.) Accordingly, Appellant asks the Court to vacate common pleas’ Order and 

remand the matter with instructions for common pleas to hold an evidentiary hearing 

relative to the validity of the alleged underlying settlement. 

Township argues as follows. Common pleas correctly determined it lacked 

jurisdiction to act on Appellant’s Petition to Enforce once 30 days passed after entry 

of the Praecipe to Discontinue. Assuming common pleas did have jurisdiction, it 

still did not err in dismissing the Petition to Enforce because it should have been 

treated as an action in mandamus, which is subject to a six-month statute of 

limitations. Because Appellant filed her Petition to Enforce one year after the Final 

Determination and nearly eight months after the Praecipe to Discontinue was filed, 

it was time barred. Finally, if we construe Appellant’s initial filing with this Court 

as an attempt to appeal nunc pro tunc the entry of the Praecipe to Discontinue, and 
11

not common pleas’ Order, Township argues Appellant has not satisfied the standard 

for nunc pro tunc relief. Appellant admits she was aware of the entry of the Praecipe 

to Discontinue as early as July 5, 2018, but provides no explanation for her delay in 

filing her appeal. Township asks the Court to affirm common pleas’ Order. 

In her Reply Brief, Appellant responds that the filing of the Praecipe to 

Discontinue tolled any statute of limitations. Appellant questions whether a 

voluntary discontinuance constitutes a final adjudication that would trigger the 30-

day period under Section 5505 of the Judicial Code. Appellant also disputes 

Township’s contention that “[a] request to strike the discontinuance is . . . subject to 

any 30-day jurisdiction limitation.” (Appellant’s Reply Br. at 2.) Appellant claims 

“‘Rule 229(c) does not establish a time period within which a motion to strike a 

discontinuance must be filed.’” (Id. at 2-3 (quoting Nastasiak v. Scoville Enters., 

Ltd., 618 A.2d 471, 472-73 (Pa. Super. 1993)).) Appellant asserts Township cannot 

establish it will suffer prejudice if the Praecipe to Discontinue is stricken because it 

“will be placed back in its pre-discontinuation status, i.e., its Petition for Review 

pending before [common pleas].” (Id. at 3.) The fact that Township may have to 

proceed with its appeal, according to Appellant, is insufficient to establish prejudice; 

instead, Township must show it is prejudiced in its ability to present or prove its 

case. Appellant also argues that “[w]hether [Appellant] should have moved to strike 

the discontinuance or have filed an appeal at an earlier time are questions for 

[common pleas]” and require an evidentiary hearing. (Id. at 4.) Because the factual 

record has not been sufficiently developed, Appellant asks that the Court vacate 

common pleas’ Order and remand the matter for such a hearing. 
12

III. DISCUSSION

Rule 229(a) provides “[a] discontinuance shall be the exclusive method of 

voluntary termination of an action, in whole or in part, by the plaintiff before 

commencement of the trial.” Pa.R.C.P. No. 229(a). A discontinuance “terminate[s] 

the action without an adjudication on the merits and [] place[s] the plaintiff in the 

same position as if the action had never been instituted.” Kalmeyer v. Municipality 

of Penn Hills, 197 A.3d 1275, 1279 (Pa. Cmwlth. 2018) (quotation omitted). A 

“settlement and discontinuance ha[ve] the same effect as the entry of a judgment for 

the defendant in the proceedings. As between the parties to the action, it is 

conclusive as to the cause of action asserted therein.” Sustrik, 197 A.2d at 46. 

Generally, “where an action is discontinued, there is no longer any proceeding in 

which the trial court may exercise jurisdiction.” Kalmeyer, 197 A.3d at 1279. 

Because there is no pending action or live controversy, “[i]t is self-evident that . . . 

there is no matter over which a court can or may exert jurisdiction.” Id. (quoting 

Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474, 476 (Pa. Super. 

2014)). Because a praecipe to discontinue serves as a final order, under Section 5505 

of the Judicial Code, a court loses jurisdiction to modify or rescind that order after 

30 days of its entry. 42 Pa.C.S. § 5505. 

Here, Township filed its Praecipe to Discontinue on June 25, 2018. Therefore, 

common pleas was divested of jurisdiction on July 25, 2018. Appellant filed the 

Petition to Enforce on February 21, 2019, which was well outside the 30-day period. 

As a result, common pleas concluded it lacked the ability to entertain Appellant’s 

Petition to Enforce. However, the case upon which common pleas relied is 

distinguishable from the facts here. Freidenbloom involved a petition for attorney’s 
13

fees filed more than 30 days after the action was discontinued.5 It did not include 

allegations that the case was discontinued based upon a settlement that one of the 

parties claimed was entered into without authority. 

Common pleas recognized, “as with many rules,” exceptions to the 30-day 

final order rule apply. (Common Pleas’ 1925(a) Op. at 8.) Those exceptions include 

allegations that the discontinuance was the result of fraud, mistake, or imposition. 

In Re: Condemnation by the Commonwealth of Pennsylvania, Dep’t of Transp., 137 

A.3d 666, 673 (Pa. Cmwlth. 2016). We have also recognized an exception when 

“some other circumstance occurs that is ‘so grave or compelling as to constitute 

extraordinary cause justifying intervention by the court,’ allowing a court to open or 

vacate its order after the 30-day period expired.” Pendle Hill v. Zoning Hearing Bd. 

of Nether Providence Twp., 134 A.3d 1187, 1193 (Pa. Cmwlth. 2016) (quoting 

Ainsworth v. Dep’t of Transp., Bureau of Driver Licensing, 807 A.2d 933, 937 (Pa. 

Cmwlth. 2002)).

In Hopewell v. Hendrie, 562 A.2d 899 (Pa. Super. 1989),6the Superior Court 

faced a situation similar to the one here where a discontinuance was allegedly filed 

without a party’s knowledge. There, one of the plaintiff’s attorneys of record 

mistakenly filed a discontinuance of a wrongful death and survival action without 

the knowledge of either the plaintiff or the other attorney who was actually litigating 

the case. The mistake went unnoticed for 10 months and was not discovered until 

the matter was listed for trial, at which time defense counsel contacted the plaintiff’s 

 

5 Freidenbloom was overruled in Miller Electric to the extent it contradicted the Supreme 

Court’s holding in that case that a motion for attorney’s fees filed under Section 2503(3) of the 

Judicial Code, 42 Pa.C.S. § 2503(3), “is not a separate suit for fees, but rather, a matter that is 

connected but ancillary to the underlying action.” Miller Elec., 907 A.2d at 1057.

6 While not binding, Superior Court decisions “offer persuasive precedent where they 

address analogous issues.” Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa. 

Cmwlth. 2018).
14

counsel and advised the matter was discontinued. Upon discovery, the plaintiff’s 

counsel filed a petition seeking to strike the discontinuance, which the trial court 

denied. The trial court cited delay in filing the petition to strike and prejudice for its 

denial of relief. On appeal, the Superior Court concluded the trial court abused its 

discretion and reversed. Id. at 900. In doing so, it noted that upon discovery, the 

plaintiff immediately sought to remedy the mistake. Id. at 901. It further found that 

while the defendants would be “prejudiced in the sense that they will have to defend 

the action,” the defendants did not suffer any prejudice in their ability to defend the 

case. Id. On the other hand, because the statute of limitations had already run, the 

plaintiff would be prejudiced by not being able to bring a new action. Id. Balancing 

the interests involved, the Superior Court held the discontinuance should be struck 

and the action reinstated. Id. at 901-02.

Similarly, in Nastasiak, the Superior Court held the trial court abused its 

discretion in refusing to strike off a discontinuance entered by the party’s former 

counsel without the party’s consent or knowledge. In that case, an action brought 

by minority shareholders against a corporation was discontinued in June 1990 by 

their former counsel. In March 1991, new counsel discovered the discontinuance, 

and, in September 1991, filed a petition to strike the discontinuance. Citing the delay 

between discovery of the discontinuance and the filing of the petition to strike, the 

trial court denied the petition. Nastasiak, 618 A.2d at 472. The trial court 

acknowledged the Superior Court’s holding in Hopewell, but found it inapplicable 

because of the shareholders’ delay. Id. at 473. The Superior Court, however, stated 

that “it [wa]s inherent in the Hopewell decision that delay alone will not bar relief 

unless an adverse party has been prejudiced by such delay.” Id. Concluding there 

was no prejudice outside of being required to defend the action, which was not the 
15

type of prejudice to be considered, the Superior Court reversed the trial court’s order, 

struck the unauthorized discontinuance, and remanded the matter for further 

proceedings. Id. at 474. 

Here, common pleas acknowledged that Appellant’s allegations that her prior 

counsel did not have express authority to enter into the settlement agreement “would 

likely fall within the judicially carved exception to Section 5505 and Pa.[]R.C.P. No. 

229(c).” (Common Pleas’ 1925(a) Op. at 11.) Common pleas likewise

acknowledged this Court’s precedent requiring a hearing when a party claims its 

counsel lacked authority to settle. (Id. (citing Brannam, 906 A.2d at 641).

7

) 

Common pleas reasoned that Appellant never requested a hearing and a court cannot 

sua sponte schedule one, citing Rule 208.4(a)(2)(v) of the Pennsylvania Rules of 

Civil Procedure. (Common Pleas’ 1925(a) Op. at 11.) However, Rule 

208.4(a)(2)(v) provides that “[a]t the initial consideration of a motion, the court may 

enter an order that . . . sets forth the procedures the court will use for deciding the 

motion which may include . . . the holding of an evidentiary hearing[.]” Pa.R.C.P. 

No. 208.4(a)(2)(v). It is silent as to whether a party must request one. On the other 

hand, Rule 208.4(b)(1) expressly permits a court to sua sponte schedule a hearing. 

It provides that “[i]f the moving party seeks relief based on disputed facts for which 

a record must be developed, the court, upon its own motion or the request of any 

party including the moving party, may enter an order in the form . . . of a rule to 

 

7

In Brannam, counsel for the parties negotiated an oral settlement, but when the terms 

were conveyed to the clients, the plaintiffs indicated that they did not agree to the settlement terms. 

Plaintiffs’ counsel informed the trial court of their disagreement, but the trial court nonetheless 

entered an order of settlement based upon the purported oral settlement and denied the plaintiffs’ 

subsequent motion to strike the order of settlement and motion for reconsideration. On appeal, we 

held “the existence of a settlement agreement requires an evidentiary hearing whenever one party 

disputes the existence of an agreement or its binding effect.” Brannam, 906 A.2d at 639.
16

show cause,” which may include scheduling a hearing. Pa.R.C.P. No. 208.4(b)(1)

(emphasis added).

In her Petition to Enforce, Appellant avers as follows:

18. [Appellant] . . . retained Attorney Terry Mutchler to represent [her] 

in the pending Petition for Judicial Review filed by [Township]. . . .

19. On June 21, 2019[,] just four days before the scheduled Status 

Conference in [common pleas, Township] released a second version of 

the redacted invoices to Attorney Mutchler. The invoices included the 

58 redactions as permitted by the OOR, but also included an additional 

128 redactions above and beyond what the OOR had allowed. . . . 

20. [Appellant] . . . did not accept the newly redacted version of the 

Solicitor’s invoices and affirmed with Attorney Mutchler only the 

OOR’s [Final D]etermination allowing 58 redactions would be 

acceptable.

21. On June 25, 2018, [Township’s counsel] filed a Praecipe to 

Discontinue with [common pleas]” and “[a]t no time did [Appellant] 

. . . agree to a discontinuance.” 

(Petition to Enforce ¶¶ 18-21.) 

In its Motion to Strike, Township stated that “counsel for the Township and 

Attorney Mutchler reached an agreement to provide redacted copies of the invoices 

which were satisfactory to [Appellant] . . . , but which also maintained the 

Township’s privilege in said invoices.” (Motion to Strike ¶ 10.) Township stated 

that Appellant, through her counsel, had accepted the settlement agreement 

regarding the invoices. (Id. ¶ 17.) 

It is apparent from the facts as averred by Appellant and Township that a 

factual dispute exists. Thus, an evidentiary hearing to resolve the dispute should 

have been scheduled. 
17

That said, we can understand common pleas’ reasoning. Appellant filed what 

was titled a “Petition to Enforce Final Determination of the [OOR].” (Reproduced 

Record at 38a.) She did not file a “Motion to Strike the Praecipe to Discontinue.” 

However, her averments in the Petition to Enforce support that the basis for her 

seeking relief is the validity of the discontinuance. We agree with Appellant that:

[t]he purpose of the Petition to Enforce was to compel [] Township to 

produce the records requested in the form ordered by the OOR. 

Encompassed within the Petition to Enforce [wa]s [a] challenge to 

the validity of the settlement agreement underlying the Praecipe to 

Discontinue. The Praecipe to Discontinue and the settlement are 

inextricably intertwined and one cannot exist independent of the 

other. Absent a valid settlement, Township did not have the authority 

to forfeit [Appellant]’s legal right to the Billing Invoices as per the 

OOR.

(Appellant’s Br. at 16 (emphasis added).) However as styled, the “Petition to 

Enforce Final Determination of the [OOR]” was not a motion to strike the 

discontinuance pursuant to Rule 229(c) of the Pennsylvania Rules of Civil

Procedure. 

In its Rule 1925(a) Opinion, common pleas stated that a motion to strike a 

discontinuance must comply with state and local rules governing civil procedure and 

Appellant’s pleading did not. Common pleas noted Appellant “failed to plainly and 

adequately develop the material facts (e.g.[,] the existence of fraud, mistake, 

imposition, or other extraordinary cause) underlying her requested relief aside from 

a cursory mention of her attorney’s lack of settlement authority. . . .” (Common 

Pleas’ 1925(a) Op. at 11-12.) We cannot disagree with common pleas that 

Appellant’s allegations related to her former counsel’s lack of authority are not well 

developed. However, to the extent common pleas found Appellant’s pleading did 

not conform to the governing rules of civil procedure, the remedy would not be an 
18

outright dismissal of her petition with prejudice. Rather, the Petition to Enforce

should have been dismissed without prejudice, so that Appellant could have refiled 

a pleading that did conform to the applicable rules. See Tomb v. Matlack, Inc., 447 

A.2d 1122, 1123 (Pa. Cmwlth. 1982) (reversing a trial court order dismissing the 

appellant’s petition to strike off a discontinuance because notice was not given 

pursuant to Rule 229(c) and allowing the appellant to refile a petition that did comply 

with the rule). 

However, before deciding whether to allow Appellant to file another motion 

that does conform to the Rules, we must consider whether it would be futile for 

Appellant to do so because her delay in filing the initial Petition to Enforce once she 

discovered the Praecipe to Discontinue resulted in prejudice to Township. Common 

pleas provided this as another reason for dismissing Appellant’s Petition to Enforce 

with prejudice. We agree with Appellant that, similar to whether former counsel had 

express authority to settle this matter on Appellant’s behalf, “[w]hether [Appellant] 

should have moved to strike the discontinuance or have filed an appeal at an earlier 

time are questions for [common pleas]” and require an evidentiary hearing. 

(Appellant’s Reply Br. at 4.) Those are factual issues, along with what, if any, 

prejudice Township may suffer if the discontinuance is stricken and Township’s 

Petition for Judicial Review of the OOR Final Determination is reinstated, that 

common pleas can only consider following an evidentiary hearing. 

IV. CONCLUSION

Based on the aforementioned facts and analysis, we affirm the Order of 

common pleas to the extent it granted the Motion to Strike, but reverse its Order to 

the extent it struck the Petition to Enforce with prejudice. Consistent with Tomb, 
19

Appellant is permitted to file another motion with common pleas seeking to strike 

the discontinuance that Appellant alleges was entered without her authority that does 

conform to the applicable rules within 30 days. Thereafter, common pleas should 

schedule an evidentiary hearing to determine whether extraordinary cause exists that 

would permit common pleas to act, even if more than 30 days had elapsed since the 

Praecipe to Discontinue was filed. At the hearing, the parties can present evidence 

as to the purported settlement, Appellant’s alleged delay in seeking to strike the 

discontinuance, and Township’s alleged prejudice in pursuing its claim if the 

underlying matter is reinstated. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wilmington Township :

 :

v. : No. 457 C.D. 2019

 : 

Carrie Hahn, :

Appellant :

O R D E R

NOW, March 2, 2020, the Order of the Court of Common Pleas of Lawrence 

County, entered in the above-captioned matter, is AFFIRMED IN PART and 

REVERSED IN PART. The Order is affirmed to the extent it granted the Motion 

to Strike filed by Wilmington Township, but is reversed to the extent it struck the 

Petition to Enforce filed by Carrie Hahn (Appellant) with prejudice. This matter is 

remanded, and upon remand, Appellant shall be permitted to file a new motion 

seeking to strike the discontinuance that she alleges was filed without her authority. 

The new motion should comply with any applicable rules and shall be filed within

30 days of the date of this order. Upon filing of the new motion, common pleas 

should hold an evidentiary hearing to resolve any factual disputes raised therein.

Jurisdiction relinquished.

_____________________________________

RENÉE COHN JUBELIRER, Judge