IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daniel King, : Appellant : : v. : No. 226 C.D. 2012 : SUBMITTED: January 18, 2013 Riverwatch Condominium : Owners Association : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: May 8, 2013 Daniel King appeals from an order of the Court of Common Pleas of Delaware County (trial court) that dismissed his petition to vacate and strike the verdict/judgment entered by the trial court on June 21, 2010 in favor of Riverwatch Condominium Owners Association (Association) and against him. In King v. Riverwatch Condo. Owners Ass'n, 27 A.3d 276 (Pa. Cmwlth. 2011), appeal denied, Pa., 50 A.3d 693 (2012), this Court previously affirmed the trial court's order that denied King's motion to reconsider the dismissal of the post-trial motion filed after the June 21, 2010 verdict/judgment and further denied his request for permission to refile the post-trial motion nunc pro tunc. King filed the instant petition to vacate and strike the June 21, 2010 verdict/judgment while his petition for allowance of appeal from this Court's decision was pending before the Supreme Court.
King argues that the trial court's June 21, 2010 order is void because it entered the verdict and the judgment on the same day. He further argues that the post-trial motion filed on July 2, 2010 was not untimely because the Delaware County Office of Judicial Support (prothonotary) failed to send his counsel written notice of the June 21 verdict/judgment. We conclude that the trial court lacked jurisdiction to hear the petition to vacate and strike the verdict/judgment pending the appeal from this Court's previous decision and that King was barred by res judicata from raising the issues that were already decided, as well as those that could or should have been raised in the prior appeal. Accordingly, we affirm. King commenced this action against the Association in 2008, seeking a reimbursement of costs incurred to jack up and replace a defective horizontal steel beam on his condominium unit's garage roof. The Association filed counterclaims seeking attorney's fees and assessment of fines for King's violation of the Association's bylaws. After a bench trial, the trial court issued an order on June 21, 2010, rendering a verdict in favor of the Association and against King and awarding the Association attorney's fees in the amount of $8500.17. In the order, the court stated that "[j]udgment will be, and hereby is, entered in accordance with the foregoing verdicts." Trial Court's June 21, 2010 Order. No. 236(a), provides: Rule 236(a) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. The prothonotary shall immediately give written notice of the entry of (1) a judgment entered by confession to the defendant by ordinary mail with a copy of all documents filed with the prothonotary in support of the confession of judgment. ; and 2
(2) any other order or judgment to each party's attorney of record [1] or, if unrepresented, to each party. The notice shall include a copy of the order or judgment. [Emphasis added.]. Rule 1038(c), Pa. R.C.P. No. 1038(c), which applies to a "trial without jury" provides: "The decision may be made orally in open court at the end of the trial or it may be made there-after in writing and filed forthwith. In either event the prothonotary shall notify all parties or their attorneys of the date of filing." [Emphasis added.] On June 21, 2010, the prothonotary docketed the June 21 order and sent a notice of the verdict/judgment to the Association's counsel and King. The prothonotary did not send the notice to Thomas P. Gannon, Esquire, who represented King throughout the proceeding, because his information was not in the docketing system due to his failure to file a written appearance with the prothonotary pursuant to Rule 1012, Pa. R.C.P. No. 1012. Attorney Gannon, however, received a courtesy copy of the verdict/judgment faxed by the trial judge on June 22. King filed a post-trial motion on July 2, 2010. On July 28, the trial court dismissed the motion as untimely under Pa. R.C.P. No. 227.1(c)(2), which requires a post-trial motion to be filed within ten days after ''notice of nonsuit or the filing of the decision in the case of a trial without jury." Attorney Gannon then filed a praecipe for entry of appearance and filed a motion for reconsideration and for permission to refile the post-trial motion nunc pro tunc. The trial court denied the motion. See King v. Riverwatch Condo. Ass'n, 18 Pa. D. & C. 5th 318 (2010). King appealed, arguing that all of his pleadings contained Attorney Gannon's 1 The term "attorney of record" is defined as "an attorney at law who is entered on the docket or record of a court as appearing for or representing a party in a legal proceeding." Rule 76, Pa. R.C.P. No. 76. 3
name, address and attorney identification number and that the prothonotary's failure to enter that information into the docketing system and to send notice of the June 21 verdict/judgment to Attorney Gannon constituted a breakdown of the court's operation, justifying his filing of the post-trial motion one day late. In July 2011, this Court affirmed the trial court's decision and remanded to determine the amount of attorney's fees due and owing to the Association. We concluded, inter alia, that although the filing of a written appearance under Rule 1012(a) is not mandatory, "the practical result of counsel's failure to enter his appearance was that the [prothonotary] did not enter counsel's name and address into its docketing system and only King received notice as the 'captioned party.'" King, 27 A.3d at 279. While his petition for allowance of appeal from this Court's July 2011 decision was pending before the Supreme Court, King filed a mandamus action against the prothonotary in September 2011, seeking an order directing the prothonotary to send Attorney Gannon notice of the entry of the June 21, 2010 verdict/judgment. King v. Martinez (428 M.D. 2011). King also filed a second post-trial motion, alleging that after his filing of the mandamus action, the prothonotary sent Attorney Gannon a Rule 236 notice of the June 21, 2010 verdict/judgment on November 1, 2011. The trial court granted the Association's motion to strike the second post-trial motion. King thereafter filed a petition to vacate and strike the June 21, 2010 verdict/judgment and to reinstate the post-trial motions, which was dismissed by the trial court. 2 King appealed the dismissal of 2 The trial court also denied other numerous motions and petitions filed by King pending his appeal from this Court's July 2011 decision, including a motion to correct the record to reflect entry of Attorney Gannon's written appearance as of the filing of the complaint on February 11, 2008, and the motions to amend the trial court's orders to include the statement for interlocutory (Footnote continued on next page ) 4
the petition, which is before the Court for disposition. In the subsequently filed opinion, the trial court stated that the dismissal of the petition to vacate and strike protected the status quo pending King's petition for allowance of appeal from this Court's 2011 decision and that the instant appeal should be quashed because the issues had been previously decided or had never been raised in the previous appeal. See King v. Riverwatch Condo. Owners Ass'n, 99 Del. 185 (C.P. Pa. 2012). In this appeal, King again attacks the trial court's June 21, 2010 judgment, arguing that it is void and has no legal effect because it was entered before the filing of a post-trial motion. He claims that he can challenge the validity of a judgment at any time. He maintains that Attorney Gannon was entitled to receive the notice of the June 21, 2010 verdict/judgment as an "attorney of record" under Rule 236(a)(2). In support, he cites the Delaware County Court Rule of Civil Procedure 1012(a), which provides that "[t]he filing by any attorney of his first paper or pleading in a case shall be equivalent to the entry of a written appearance." Reproduced Record at 66a. He asserts that the unofficial copy of the verdict/judgment sent by the trial court to Attorney Gannon did not trigger the 10- day period within which to file a post-trial motion. The Association counters that King's claims are barred by res judicata because they were raised and decided or could have been raised in the prior appeal. 3 (continued ) appeals by permission pursuant to Section 702(b) of the Judicial Code, as amended, 42 Pa. C.S. 702(b). This Court denied King's petitions for review from the denial of the motions to amend the August 18 and December 9, 2011 orders (1764 C.D. 2011 and 138 C.D. 2012). 3 The Association filed applications to quash the appeal, alleging that this Court lacked jurisdiction to hear the instant appeal pending King's petition for allowance of appeal before the Supreme Court and that the issues raised in this appeal had already been decided or could have been raised in the previous appeal. By orders dated March 29 and December 7, 2012, the Court (Footnote continued on next page ) 5
King filed the instant petition to vacate and strike the June 21, 2010 verdict/judgment pending his appeal from this Court's prior decision upholding that verdict/judgment. Once an appeal is taken from an order entered in the matter, the trial court may no longer proceed further in the case, except for certain matters, such as taking action necessary to preserve the status quo, enforcing the order absent supersedeas, granting reconsideration and acting on ancillary matters. Rule 1701(a) and (b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1701(a) and (b); City of Reading v. Firetree, Ltd., 984 A.2d 16 (Pa. Cmwlth. 2009); Commonwealth v. Reading Grp. Two Props., Inc., 922 A.2d 1029 (Pa. Cmwlth. 2007). The trial court, therefore, lacked jurisdiction to hear King's petition to vacate and strike the June 21, 2010 verdict/judgment pending his appeal to the Supreme Court challenging that verdict/judgment. Further, we already rejected King's argument that the prothonotary was required to enter Attorney Gannon's information contained in the pleadings into the docketing system and to send Attorney Gannon a Rule 236(a)(2) notice, and that he should be permitted to refile the post-trial motion nunc pro tunc. We determined: "[G]iven the fact that Rule 236 requires that the Prothonotary send notices only to 'attorneys of record,' the [prothonotary] had no obligation to send counsel for King notices independent of King as 'captioned party.'" King, 27 A.3d at 279. We further explained: [T]he only purpose of the requirement in Rule 1025 [Pa. R.C.P. No. 1025] to include an address on every legal pleading or paper of a party represented by an attorney is to provide an address to which further pleadings can be (continued ) denied the applications without prejudice to the Association to raise the issue in a brief filed on the merits of the appeal. 6
mailed, not to provide the [prothonotary] with a name and address for Rule 236 purposes. Further, while it is true that the trial court's provision of a courtesy copy of the verdict/judgment to counsel for King could not substitute for actual notice from the prothonotary under Rule 236, the trial court did not err in considering its courtesy provision of the verdict/judgment to counsel in exercising its discretion to dismiss King's request to refile the post-trial motion nunc pro tunc. There was a combination of factors at work here which counsel for King had within his power to remedy, especially his failure to enter his appearance in a timely manner. Id. at 280 (citation omitted). See also Fraternal Order of Police, Lodge No. 5 v. City of Phila., 655 A.2d 666 (Pa. Cmwlth. 1995) (holding that the prothonotary can only send notices to the individuals who informed the prothonotary of their representation of a party and that when no appearance has been entered, notice would be sent to the captioned party). The trial court's June 21, 2010 verdict and judgment entered in King's action became final when the Supreme Court denied King's petition for allowance of appeal from this Court's July 2011 decision on August 22, 2012. King is therefore barred by res judicata from challenging that judgment and relitigating the prothonotary's compliance with the notice requirement under Rule 236(a)(2). 4 Res judicata applies not only to issues, claims or defenses actually raised and litigated in the prior proceeding but also to those which could or should have been raised. Weney v. Workers' Comp. Appeal Bd. (Mac Sprinkler Sys., Inc.), 960 A.2d 949 (Pa. Cmwlth. 2008); Scott v. Mershon, 657 A.2d 1304 (Pa. Super. 1995). King also waived his challenge to the propriety of the trial court's entry of the verdict and the 4 Res judicata applies where, as here, there is identity of (1) the things sued upon or for, (2) the causes of action, (3) the persons or parties to the action, and (4) the quality or capacity of the parties suing or being sued. Pa. Soc. Servs. Union, Local 688 of the Serv. Emps. Int'l Union, 59 A.3d 1136 (Pa. Cmwlth. 2012). 7
judgment on the same day due to his failure to raise it in a timely filed post-trial motion. See Hysong v. Lewicki, 931 A.2d 63 (Pa. Cmwlth. 2007) (holding that any issues not raised in a timely filed post-trial motion are waived). King did not appeal the 2010 dismissal of the post-trial motion raising the validity of the judgment. Instead, he appealed only the trial court's refusal to reconsider the dismissal of the post-trial motion and refusal to permit him to refile the post-trial motion nunc pro tunc. As we already concluded in the previous appeal, therefore, he "has waived any further challenge to the dismissal of his post-trial motion" due to his failure to appeal the dismissal. King, 27 A.3d at 277 n.2. 5 Accordingly, we affirm the trial court's order dismissing the petition to vacate and strike the June 21, 2010 verdict/judgment. BONNIE BRIGANCE LEADBETTER, Judge 5 The concise statement of errors complained of on appeal filed by King pursuant to Pa. R.A.P. 1925(b) consisted of 10 pages with 20 paragraphs and 22 footnotes. In its opinion, the trial court stated that the issues raised in the Rule 1925(b) statement should be deemed waived, noting that King, through Attorney Gannon, asserted "imaginary claims for the apparent purpose to overwhelm and punish defense counsel and the trial court in a manner which can be credibly characterized as a breach of his duty of good faith and fair dealing with the court system." King, 99 Del. at 191-92. We are compelled to note, without deciding, that King's failure to file a "concise" Rule 1925(b) statement can also provide a basis for finding a waiver of the issues raised therein. See Jiricko v. Geico Ins. Co., 947 A.2d 206 (Pa. Super. 2008) (finding a waiver of issues where the appellant made an incoherent, confusing, redundant, defamatory rant in a lengthy 5-page Rule 1925(b) statement); Tucker v. R.M. Tours, 939 A.2d 343 (Pa. Super. 2007), aff'd, 602 Pa. 147, 977 A.2d 1170 (2009) (finding a waiver where the appellants attempted to overwhelm the court by filing a 16-page Rule 1925(b) statement with 76 paragraphs and exhibits). 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daniel King, : Appellant : : v. : No. 226 C.D. 2012 : Riverwatch Condominium : Owners Association : O R D E R AND NOW, this 8th day of May, 2013, the order of the Court of Common Pleas of Delaware County in the above-captioned matter is AFFIRMED. BONNIE BRIGANCE LEADBETTER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daniel King, : Appellant : : v. : No. 226 C.D. 2012 : Submitted: January 18, 2013 Riverwatch Condominium : Owners Association : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY SENIOR JUDGE COLINS FILED: May 8, 2013 I disagree with the majority s conclusions regarding the prothonotary s failure to notify Attorney Gannon of the fact that his name was not in the docketing system. As noted by the majority, the term attorney of record is defined as an attorney at law who is entered on the docket or record of a court as appearing for or representing a party in a legal proceeding. The record reflects that all of the pleadings contained Attorney Gannon s name, address, and attorney identification number. Surely, the failure to enter this information in the docketing system, constituted a breakdown of the court s operation, justifying his filing the post-trial motions one day late. We must note that the faxed courtesy copy of the notice was received by Attorney
Gannon on June 22 nd, and post-trial motions were filed 10 days later. Such a rigid adherence to form and structure in the instant matter is too punitive. JAMES GARDNER COLINS, Senior Judge JGC-2