J-A32030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EUGENE W. SCHERICH IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

THOMAS E. BLANDFORD, SUCCESSOR 

TRUSTEE OF HILLMAN A. TRUST AND 

HILLMAN B. TRUST; GLORIA J. 

HOGSETT, INDIVIDUALLY, AND AS 

ADMINISTRATRIX OF THE ESTATE OF 

JOHN THOMAS HOGSETT, DECEASED, 

AND DOING BUSINESS AS LUZERNE 

RESOURCES DEVELOPMENT COMPANY, 

FOREE OIL COMPANY, AND JESMAR 

ENERGY, INC.

No. 129 WDA 2015

Appeal from the Order December 31, 2014

In the Court of Common Pleas of Greene County

Civil Division at No(s): A.D. No. 957 of 2013

BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 30, 2015

Eugene W. Scherich appeals from the order entered December 31, 

2014, in the Court of Common Pleas of Greene County, denying him relief on 

his motion to remove nonsuit.1 In this timely appeal, Scherich raises five 

arguments, which are largely summarized as a claim the trial court erred in 

____________________________________________

1 The appeal properly lies from entry of judgment, not the denial of the 

motion to remove nonsuit. Technically, this appeal was premature. 

However, judgment was entered on March 13, 2015. Therefore, we proceed 

to the merits of this appeal.
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failing to recognize he did not receive proper notice of Defendants’ 

emergency motion prior to the entry of the nonsuit. Following a thorough 

review of the submissions by the parties, relevant law, and the certified 

record, we reverse and remand for a hearing on Defendants’ motion to 

vacate Scherich’s praecipe to discontinue.

There appears to be a tortured history to this matter, during which 

Scherich has attempted to obtain title to certain property known as the 

Gateway Mine. Defendants assert Scherich has filed prior cases in 

Westmoreland County, Fayette County, and Greene County pursuing this 

goal. This action allegedly represents Scherich’s second attempt in Greene 

County. 

The current action, a Complaint In Action To Quiet Title, was filed on 

October 10, 2013, and Scherich was represented by David F. Pollock, 

Esquire. Trial on the matter was eventually scheduled for December 18, 

2014. Scherich came to believe that his counsel had a conflict of interest, 

and approximately one month before trial, on November 21, 2014, following 

a hearing on Attorney Pollock’s motion to withdraw and for continuance, 

Pollock was allowed to withdraw, but no continuance was granted. 

On December 17, 2014, at approximately 9:40 a.m., Scherich, acting 

pro se, filed a Preacipe to Discontinue his lawsuit. Scherich served the 

praecipe upon opposing counsel via email and facsimile transmission. Both 
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the email and facsimile were sent from the law offices of Hook and Hook.2 

This law firm had apparently represented Scherich in other matters, but had 

not entered an appearance for Scherich in the instant matter. At the 

November 21, 2014 hearing, Attorney Pollock asserted that Scherich’s 

current counsel David Hook, Esq., had requested on Scherich’s behalf, that 

Pollock withdraw. Pollock also stated that Hook was actively representing 

Scherich in the Fayette County action.

Upon receipt of the praecipe to discontinue, the Defendants filed a 

joint emergency motion to strike the discontinuance. Paragraph 7 of the 

proposed order stated: “The trial shall commence forthwith as scheduled at 

9:00 a.m. on December 18, 2014.” See Motion and Order, 12/18/2014. 

The certificate of service for the emergency motion indicates copies of the 

document were served upon Scherich via first class mail, email and facsimile 

transmission on December 17, 2014.

On December 18, 2014, counsel for Defendants appeared in court and 

argued the emergency motion to vacate the discontinuance. Regarding 

notice to Scherich, counsel on behalf of Defendant Blandford, Charles B. 

Watkins, Esquire, stated: 

____________________________________________

2 The header on the email indicates it originated from the email account of 

Kathleen Demchak at hookandhook.com. The facsimile cover sheet was 

amended to replace “Hook and Hook” with “Eugene Scherich.” However, the 

fax origination number at the top of the transmission indicates it came from 

the Hook and Hook fax machine.
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I faxed and e-mailed a copy of this petition to Mr. Hook’s office 

with instructions to – what the requests are basically, to deliver 

it to Mr. Scherich. 

So I think at least Mr. Hook knows that this petition is being 

presented this morning.

N.T. Hearing, 12/18/2014, at 7.

Additionally, counsel for Defendant Hogsett stated:

Mr. Hook could have been here to argue this, Mr. Scherich could 

have been here to argue this. Somebody should have been here 

and then asked you to issue a rule, but that not having been 

done in light of it being an emergency joint petition, knowing it 

was [being] presented today, they faxed it to us, we faxed it 

back to them. 

We gave then as much notice as they gave us.

Id. at 12.

The trial court was initially inclined to issue a Rule to Show Cause 

regarding the Defendants’ motion to vacate. This brief exchange took place:

TRIAL COURT: Let me see the petition [motion to vacate], 

please? 

Well, Rule 229(c) says upon petition and after notice may strike 

a – so why don’t we do this. I will issue a Rule to Show Cause 

returnable two weeks from tomorrow – no, that won’t work, 

returnable December 31st, at 9:00 a.m., and direct that he show 

cause why this discontinuance should not be with prejudice.

MR. WATKINS: Would that - the only issue with that, Your 

Honor, is that doesn’t allow us much time to address whatever 

creative reasons are advanced.

Id. at 10-11.

The gist of the Defendants’ argument was that Scherich was playing 

games with the system by discontinuing his action on the eve of trial, when 
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a continuance request had been denied on November 21, 2014. Without 

commentary, the trial court accepted the Defendants’ assertion of service 

and entered orders vacating the discontinuance and entering a nonsuit 

based upon Scherich’s failure to be present and ready for trial, as scheduled.

On December 29, 2014, Scherich filed a motion to vacate the two 

orders3entered on December 18, 2014. Scherich claimed the trial court 

erred in entering the orders because he had not been timely served with the 

emergency motion. The trial court denied Scherich’s motion on the ground 

he had not presented good cause for having failed to appear on December 

18, 2014. This timely appeal follows.

We begin by noting that Scherich presented no evidence when the 

case was called to trial, as originally scheduled, on December 18, 2014. 

Accordingly, a compulsory nonsuit was entered. Absent any other issues, 

the order granting the nonsuit would be proper. 

However, there remains the underlying issue of whether Scherich 

received proper notice of the emergency motion. If Scherich did not receive 

notice, then the trial court erred in determining Scherich did not have a 

satisfactory excuse for failing to appear. Therefore, the ultimate issue 

____________________________________________

3 Specifically, there were two orders entered on December 18, 2014, that 

separately vacated the discontinuance and entered a nonsuit. Scherich’s 

motion to vacate these orders was docketed on December 29, 2014, but was 

served upon the Defendants on December 24, 2014.
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before us is whether the Defendants provided proper notice to Scherich of 

their intention to present the motion to vacate Scherich’s discontinuance.

Our review of the certified record leads us to conclude there were 

multiple problems with Defendants’ service and notice of the emergency 

motion to vacate Scherich’s discontinuance.

Initially, Scherich argues that Greene County local rules require a 

party to give 24-hour notice of the presentation of such a motion. 

Specifically, Scherich states:

15. As the Defendants characterize their Petition to Strike as an 

“Emergency Joint Petition,” Greene County Local Court Rule 

G206.4(c)(4) applies. It states in part: “If a need for emergency 

relief is sought, the request shall be presented to the motions 

judge, with notice to opposing counsel, if known, and 

unrepresented parties of the date and time of presentation in 

accordance with Local Rule G208.3(a).”

16. “Rule G208.3(a): Disposition of Motion” requires notice to be 

received by counsel or an unrepresented party “at least 24 hours 

in advance of presentation to the court.”

Scherich’s Motion to Vacate Two Orders of December 18, 2014, 12/29/2014,

at ¶¶15-16.

The Defendants’ joint answer to this motion does not deny the 

substantive content of the local rule as stated by Scherich. However, the 

Defendants argued:

15. Paragraph 15 states a conclusion of law to which no 

response is required. By way of further answer, however, 

Defendants aver that said rule is applicable to the instant 

situation. To the contrary, [Scherich] filed and served the 

Praecipe to Discontinue less than 24 hours before the 

commencement of trial. Accordingly, it was legally and factually 
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impossible for Defendants to serve the Joint Emergency Petition 

upon Plaintiff within 24 hours of the necessary presentment of 

the Joint Emergency Petition.

Defendants’ Joint Answer to Plaintiff’s Motion, 12/30/2014, at ¶ 15.4

It is factually true that given the timing of Scherich’s discontinuance, 

less than 24 hours before the scheduled start of trial, the Defendants could 

not reply and serve Scherich their motion to vacate 24 hours prior to the 

scheduled start of the trial. What the Defendants have not demonstrated is 

why it was necessary to present the motion at the time trial had been 

scheduled to start. The Defendants have presented no rule, no case law, 

nor any reason that compelled their motion to vacate the discontinuance be 

heard on the morning of December 18, 2014. Accordingly, the Defendants’ 

assertion that Local Rules 206.4(c)(4) and 208.3(a) do not apply is 

unavailing. The Defendants sought emergency relief and, pursuant to local 

rules, were required to provide Scherich with a minimum of 24 hours’ notice. 

They did not. 

Second, there is no indication that emergency relief was necessary or 

appropriate. Pennsylvania Rule of Civil Procedure 229 contains no time limit 

by which a petition to strike a discontinuance must be filed. Such matters 

are left to the discretion of the court. In Hopewell v. Hendrie, 562 A.2d 

899 (Pa. Super. 1989), the successful petition was not filed until one month 

after the discontinuance. In Nastasiak v. Scoville Enterprises, Ltd., 618

____________________________________________

4

Paragraph 16 is identical in substance to Paragraph 15.
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A.2d 472 (Pa. Super. 1993), a panel of our Court determined the trial court 

erred in refusing to strike a discontinuance due to a 5-6 month delay in filing 

the petition to vacate. In short, there was no legally compelling reason for 

the Defendants’ motion to vacate to be heard on December 18, 2014.

Next, as indicated in Paragraph 15 of Scherich’s motion to vacate, 

pursuant to Local Rule 206.4(c)(4), notice is required to inform the recipient 

of the date and time of presentation of a request for emergency relief. The 

certified record does not contain any statement that the emergency petition 

was to be presented on the morning of December 18, 2014. We do 

recognize that the proposed order infers the timing of the presentation of 

the motion in Paragraph 7, which states: “The trial shall commence forthwith 

as scheduled at 9:00 a.m. on December 18, 2014.” As a general 

proposition, however, we do not believe that the required notice of date and 

time of presentation of an emergency motion should be inferred in the order, 

especially when the proposed presentation of the motion is less than the 

required 24 hours.5

Fourth, the Pennsylvania Rules of Civil Procedure provide the 

requirements for service of legal papers other than original process, by 

facsimile transmission. Rule of Civil Procedure 440 states, in relevant part:

____________________________________________

5 We recognize that it is possible that a date and time was conveyed in the 

notices, perhaps in a cover letter. But, as noted, that information does not 

appear in the certified record.
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2(i) If there is no attorney of record, service shall be made by 

handing a copy to the party or by mailing a copy to or leaving a 

copy for the party at the address endorsed on an appearance or

prior pleading or the residence or place of business of the party, 

or by transmitting a copy by facsimile as provided by subdivision 

(d).

****

(d)(1) A copy may be served by facsimile transmission if the 

parties agree thereto or if the telephone number for facsimile 

transmission is included on an appearance or prior legal paper 

filed with the court.

Pa.R.C.P. 440(a)(2)(i), (d)(1).

The certified record in this matter contains no proof or assertion that 

the parties agreed to service by facsimile transmission. Service of the 

praecipe to discontinue by facsimile to the Defendants was proper because 

their facsimile telephone numbers appear on documents filed with the court 

prior to the service of the praecipe. However, no facsimile number appears 

on any filed document regarding Scherich personally. The rules of civil 

procedure make no allowance for return service by facsimile. Simply 

because Scherich used a facsimile machine to serve the Defendants, does 

not, by rule, allow return service in the same manner. The facsimile 

machine used by Scherich in this matter was located in the office of an 

attorney who had represented Scherich in other matters. However, Scherich 

was not, at the relevant time, represented by any counsel in the instant 

matter. The Defendants have provided no case law demonstrating service to 

an attorney representing a party in another matter constitutes proper 

service to that person in any matter.
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Fifth, the Pennsylvania Rules of Civil Procedure prove similar rules for 

service by email. In relevant part, Pa.R.C.P. 205.4 states:

(g)(1) Copies of all legal papers other than original process filed 

in an action or served upon any party to an action may be 

served

(i) as provided by Rule 440 or

(ii) by electronic transmission, other than facsimile 

transmission, if the parties agree thereto or an electronic 

email address is included on an appearance or prior legal 

paper filed with the court in the action. A paper served 

electronically is subject to certifications set forth in 

subdivision (b)(3).

Pa.R.C.P. 205.4(g)(1)(i)-(ii).

The certified record is also devoid of any agreement of service by 

email, and no email address for Scherich is found on any paper filed with the 

court prior to the filing of the Defendants’ motion to vacate. As with the rule 

for service by facsimile transmission, there is no provision for reciprocal 

e-mail service absent compliance with Pa.R.C.P. 205.4(g)(1)(ii).

Sixth, as noted above, the Rules of Civil Procedure provide for service 

by hand to an unrepresented party. See Pa.R.C.P. 440(a)(2)(i). 

Defendants served their joint answer to Scherich’s December 29, 2014, 

motion to vacate the orders of December 18, 2014 by hand as well as by 

first class mail, facsimile and e-mail.6 The certified record contains no 

____________________________________________

6 At this point, Scherich was represented by counsel. His e-mail address and 

fax number were both on his appearance. Accordingly, service through 

those methods was proper.
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explanation why the Defendants’ December 17, 2014 joint emergency 

motion to vacate the discontinuance was not also served by hand.

In light of the above, we must conclude that the Defendants did not 

properly serve Scherich with the notice of the emergency motion to vacate 

the discontinuance. Because of that, the trial court erred in determining that 

Scherich had not presented sufficient reason why he did not appear in court 

on December 18, 2014. The certified record demonstrates that Scherich 

discontinued his action and would have no reason to be in court for the trial 

scheduled for December 18, 2014. Even though Scherich may have been 

aware of the emergency motion to vacate, Defendants cannot prove he 

received notice as required by the Rules of Civil Procedure. Accordingly, the 

trial court erred in both vacating the discontinuance and in subsequently 

entering the nonsuit.

Because the trial court erred in denying Scherich’s petition to vacate 

the orders of December 18, 2014, we believe the appropriate remedy is to 

remand this action for a hearing on the Defendants’ emergency motion. This 

returns the matter to the posture that will allow the Defendants to present 

argument regarding their belief that Scherich was attempting to play games 

with the system and attempting to evade an order denying him any further 

continuances. Scherich or new counsel will be able to explain to the court 

his intentions in discontinuing his lawsuit. The trial court will then be able to 

render a fully informed decision based on the requirements in Pa.R.C.P. 

229(c), i.e., specifically determining whether Scherich’s discontinuance 
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would subject the Defendants to “unreasonable inconvenience, vexation, 

harassment, expense or prejudice.” Id.

Order reversed, judgment vacated. This matter is remanded to the 

trial court for action consistent with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2015