Brian, J. v. Springfield, E.

• Court: Superior Court of Pennsylvania
• Decided: September 15, 2016
• Docket: 1145 WDA 2015
• Status: Unpublished

Opinion

J-A16003-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JAMES BRIAN, SR., : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : EVIE M. SPRINGFIELD, : : Appellant : No. 1145 WDA 2015

Appeal from the Judgment Entered July 22, 2015 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): GD 10 023917

BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

FILED: September 15, 2016

Because I conclude that the trial court never exercised its discretion in

considering Daughter’s petition for leave to file post-trial motions nunc pro

tunc, I would vacate the judgment and remand to the trial court to consider

Daughter’s motion.

Daughter filed a petition for leave to file post-trial motions nunc pro

tunc. The trial court denied this motion the next day without offering any

rationale as to why it did so. In its memorandum in lieu of opinion, the trial

court stated only that due to the fact Daughter did not file timely post-trial

motions, she “has not properly preserved any issues for appeal.”

Memorandum in Lieu of Opinion, 7/13/2015.

*Retired Senior Judge assigned to the Superior Court. J-A16003-16

We review a “motion for leave to file post-trial motions nunc pro tunc

under an abuse of discretion standard.” D.L. Forrey & Associates, Inc. v.

Fuel City Truck Stop, Inc., 71 A.3d 915, 918 (Pa. Super. 2013).

Here, Daughter, in her petition for leave to file post-trial motions nunc

pro tunc, alleges that her trial counsel did not immediately notify her of the

non-jury verdict, and as a result, the 10-day period for filing post-trial

motions had already run before Daughter received notice of the entry of the

verdict.

I fully recognize that the learned Majority is correct in stating that

negligence of counsel is not a sufficient basis for the grant of nunc pro tunc

relief. However, on this record, we do not know whether counsel was

negligent or whether he lay comatose in a hospital bed.

Thus, we are unable to review whether the trial court abused its

discretion in denying Daughter’s motion. Accordingly, I would vacate the

judgment entered and the June 25, 2015 order denying her motion, and

remand to the trial court to consider Daughter’s reasons offered for the late-

filed post-trial motion.

-2-