Calabrese v. ZEAGER

976 A.2d 1151, 2009 Pa. Super. 95, 2009 Pa. Super. LEXIS 996, 2009 WL 1425986
CourtSuperior Court of Pennsylvania
DecidedMay 22, 2009
Docket766 Middle District Appeal 2007
StatusPublished
Cited by19 cases

This text of 976 A.2d 1151 (Calabrese v. ZEAGER) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calabrese v. ZEAGER, 976 A.2d 1151, 2009 Pa. Super. 95, 2009 Pa. Super. LEXIS 996, 2009 WL 1425986 (Pa. Ct. App. 2009).

Opinions

OPINION BY

FORD ELLIOTT, P.J.:

¶ 1 Appellants, John J. Calabrese and Deborah J. Shirk (“Calabrese and Shirk”), appeal the judgment entered in favor of appellee, P. Thomas Zeager (“Zeager”), on March 23, 2007, pursuant to a complaint filed by Calabrese and Shirk which alleged that Zeager breached a Sanitary Sewer Easement and Sewage Treatment Agreement (“the Agreement”). Finding that [1152]*1152Zeager did breach the Agreement, we reverse.

¶ 2 Preliminarily, we must address the facially untimely filing of the notice of appeal. Calabrese and Shirk filed their notice of appeal on May 2, 2007, forty days after the entry of judgment. On or about May 24, 2007, an attorney from this court’s Central Legal Staff mailed a letter to counsel for the parties that requested counsel for Calabrese and Shirk to explain why the notice of appeal was not untimely as having been filed beyond the running of the 30-day appeal period. See Pa.R.A.P. 903(a). Counsel for Calabrese and Shirk promptly responded by letter dated May 29, 2007. ¶ 3 In his response, counsel noted the following relevant docket entry:

JUDGMENT COURT ORDER — 3/23/2007
ENTERED IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANT, P. THOMAS ZEAGER, PURSUANT TO THE COURT [ORDER] DATED JANUARY 26,2007. FILED BY GEORGE T. COOK ESQ. JUDGMENT ENTERED AS DIRECTED. RANDALL O. WENGER, PROTHONOTARY. NOTICE OF ENTRY OF JUDGMENT MAILED TO THE DEFENDANT.

Counsel observed that this entry mentions service of notice upon defendant Zeager only and that no service was made upon Calabrese and Shirk. Counsel further claimed that copies of the filed Praecipe and Notice of Entry of Judgment were not mailed until April 3, 2007, the date allegedly appearing on the envelope postmark. Counsel then called attention to the following Rule of Appellate Procedure which sets the date of entry of an order as the date the clerk makes the notation on the docket that notice has been mailed to the party:

Rule 108. Date of Entry of Orders (a) General rule.
(1) Except as otherwise prescribed in this rule, in computing any period of time under these rules involving the date of entry of an order by a court or other government unit, the day of entry shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties, or if such delivery is not otherwise required by law, the day the clerk or office of the government unit makes such copies public. The day of entry of an order may be the day of its adoption by the court or other government unit, or any subsequent day, as required by the actual circumstances.
(b) Civil orders. The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).

Pa.R.A.P. 108(a)(1) and (b), 42 Pa.C.S.A.1

¶ 4 Under this Rule, the appeal period does not begin to run until the clerk notes on the docket that notice of the entry of judgment has been sent to the prospective appellant. Counsel for Calabrese and Shirk asserts that since notice was not effectively mailed until April 3, 2007, appellant had 30 days from this date to file the notice of appeal.

[1153]*1153¶ 5 The docket entry quoted by appellants’ counsel is that which appears on Lancaster County’s internet website. Unfortunately, the online version contains obvious errors.2 The paper docket entry for March 23, 2007, as it appears in the official record that has been forwarded to this court, reads as follows:

MARCH 23, 2007 — PRAECIPE TO ENTER JUDGMENT IN FAVOR OF THE DEFENDANT PURSUANT TO THE ORDER OF COURT DATED MARCH 19, 2007 AND OPINION AND ORDER DATED JANUARY 26, 2007 WITH CERTIFICATE OF SERVICE FILED BY: GEORGE T. COOK, ESQ. JUDGMENT ENTERED AS DIRECTED. RANDALL O. WENGER, PRO-THONOTARY. NOTICE OF ENTRY OF JUDGMENT MAILED TO W. BRYAN BYLER, ESQ. OF BYLER, GOODLEY, WINKLE & HETRICK, P.C., GEORGE T. COOK, ESQ. OF BLAKINGER, BYLER & THOMAS, P.C., JOHN J. CALABRESE AND DEBORAH J. SHIRK, P. THOMAS ZEAGER, HERSHEY FARM RESTAURANT AND MOTOR INN.

¶ 6 This docket entry clearly shows that notice of the entry of judgment was mailed to Calabrese and Shirk’s counsel on March 23, 2007. Thus, this case presents two conflicting dockets which yield different results when the timeliness of Calabrese and Shirk’s notice of appeal is analyzed. Pursuant to the online docket, the appeal period has not yet begun to run, and Cala-brese and Shirk’s notice of appeal is timely; pursuant to the paper docket, the appeal period expired on April 23, 2007, and Calabrese and Shirk’s notice of appeal is untimely. We find that this dichotomy must be resolved in Calabrese and Shirk’s favor.

¶ 7 Since Lancaster County published the flawed online docket and thereby imbued the information with the aura of legitimacy, litigants should not be penalized for relying upon errors contained therein. Therefore, we consider the facially late filing of the notice of appeal as to the paper docket to be the result of a breakdown in the operation of the court. Under such circumstances, an appellate court may grant equitable relief in the form of an appeal nunc pro tunc. Criss v. Wise, 566 Pa. 437, 781 A.2d 1156 (2001). Therefore, we will review Calabrese and Shirk’s appeal on the merits and will not quash it for untimeliness. We now turn to that appeal.

¶ 8 The opinion of the trial court provides our factual synopsis:

In 1991, Edwin G. Hershey (hereinafter ‘Hershey’) and Sanford M. Groff (‘Groff) entered into an agreement (‘the Agreement’) which generally stated that Groff was permitted to use the sewage plant located on Hershey’s land in exchange for $20,000. Specifically, the Agreement granted an easement across Hershey’s land for the installation, repair, maintenance and operation of an eight inch sewer line which Groff could use to construct sewer lines to connect to the plant. Additionally, Groff was limited to 5,000 gallons of sewage discharge per day.
Subsequent to the Agreement, Groff sold his property to Plaintiffs John J. Calabrese and Deborah J. Shirk (‘Cala-brese’) and Hershey sold his land to Defendant P. Thomas Zeager (‘Zeager’). At the time of sale, Groff had not connected to the plant located on Hershey’s property. Thus, Calabrese and Zeager were obligated by the Agreement, which [1154]*1154was binding on successors in title to Groff and Hershey.
In the fall of 2003, Calabrese entered into a lease agreement with a new tenant. The tenant’s planned use of the premises required more sewage capacity than Calabrese’s own on-site septic tank could handle. Therefore, Calabrese decided that he wished to tap into the plant on the Zeager property. Cala-brese claims he left voice mail messages and sent letters to Zeager conveying his desire, but the messages went unanswered. Calabrese was then forced to build a new private ‘sand mound’ septic system on his own property at a total cost of $34,275.33. He also incurred costs related to the construction, such as lost rent and attorney’s fees.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Strausser, T. v. Strausser, K.
Superior Court of Pennsylvania, 2020
Estate of Helen B. Reken, Appeal of: Grego, S.
Superior Court of Pennsylvania, 2020
R. Nifas v. S. Darr and A. Weimer
Commonwealth Court of Pennsylvania, 2019
Com. v. Johnson, J.
Superior Court of Pennsylvania, 2017
Com. v. Brown, T.
Superior Court of Pennsylvania, 2017
Lankard, C. v. Laurel Mountain
Superior Court of Pennsylvania, 2017
Valora, G. v. Valora, W.
Superior Court of Pennsylvania, 2017
Com. v. Saldana, E.
Superior Court of Pennsylvania, 2016
Com. v. Nemeth, D.
Superior Court of Pennsylvania, 2016
Greenville Surgical v. Arreola, R.
Superior Court of Pennsylvania, 2015
Calabrese, J. & Shirk, D. v. Zeager, P.
Superior Court of Pennsylvania, 2015
Milton, E. v. White, R.
Superior Court of Pennsylvania, 2015
Com. v. Bethea, M.
Superior Court of Pennsylvania, 2014
Lynn v. Pleasant Valley Country Club
54 A.3d 915 (Superior Court of Pennsylvania, 2012)
Ruby v. Abington Memorial Hospital
50 A.3d 128 (Supreme Court of Pennsylvania, 2012)
Fischer v. UPMC Northwest
34 A.3d 115 (Superior Court of Pennsylvania, 2011)
Gillard v. Martin
13 A.3d 482 (Superior Court of Pennsylvania, 2010)
Calabrese v. ZEAGER
976 A.2d 1151 (Superior Court of Pennsylvania, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
976 A.2d 1151, 2009 Pa. Super. 95, 2009 Pa. Super. LEXIS 996, 2009 WL 1425986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calabrese-v-zeager-pasuperct-2009.