Grass, M. v. Mumma, R.

• Court: Superior Court of Pennsylvania
• Decided: November 28, 2017
• Docket: 303 MDA 2017
• Status: Unpublished

Opinion

J-S70025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARTIN L. GRASS & MARK G. : IN THE SUPERIOR COURT OF CALDWELL, TRADING AS DOUBLE M : PENNSYLVANIA DEVELOPMENT, A PARTNERSHIP : : : v. : : : ROBERT M. MUMMA, II AND SUSAN : No. 303 MDA 2017 MUMMA, TRUSTEES OF THE ROBERT : M. MUMMA, II. GRANTOR RETAINED : ANNUITY TRUST : : Appellants :

Appeal from the Order Entered January 17, 2017 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 5381 Equity 1996

MARTIN L. GRASS AND MARK G. : IN THE SUPERIOR COURT OF CALDWELL, TRADING AS DOUBLE M : PENNSYLVANIA DEVELOPMENT, A PARTNERSHIP : : : v. : : : ROBERT M. MUMMA, II AND SUSAN : No. 304 MDA 2017 MUMMA, TRUSTEES OF THE ROBERT : M. MUMMA, II., GRANTOR RETAINED : ANNUITY TRUST : : Appellants :

Appeal from the Order Entered January 17, 2017 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2012-CV-7139-NT

BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

JUDGMENT ORDER BY SHOGAN, J.: FILED NOVEMBER 28, 2017 J-S70025-17

At 303 MDA 2017, Appellants appeal from a January 17, 2017 order

that was misfiled at Dauphin County Docket Number 5381 Equity 1996.

Accordingly, we quash the appeal at 303 MDA 2017 as moot.

At 304 MDA 2017, Appellants appeal from the same January 17, 2017

order that revived a sanctions judgment entered at Dauphin County Docket

Number 2012-CV-7139-NT (“Writ of Revival Action”). In the Writ of Revival

Action, Appellee Double M (“Double M”) filed a motion for judgment on the

pleadings on May 1, 2014 (“Motion”). Although neither party filed briefs

pursuant to Pa.R.C.P. 1034 and Dauphin County Local Rule 1024(a), Double

M filed a certificate of readiness on July 10, 2014. The Honorable William T.

Tully refused to entertain the certificate of readiness because briefs had not

been filed. Order, 7/17/14. Two months later, despite the lack of briefs and

a new certificate of readiness, the Honorable Todd A. Hoover conducted a

status conference and entered an order granting the Motion. Order,

9/22/14. Judgment was entered on the docket on October 6, 2014.

Appellants did not file an appeal.

Instead, on September 30, 2014, Appellants’ counsel filed a joint

motion to withdraw his representation and a timely motion for

reconsideration of the September 22, 2014 order. At the direction of the

trial court, Appellants’ counsel refiled the motion to withdraw and the motion

for reconsideration separately on November 20, 2014. The Honorable

Lawrence J. Clark, Jr. entered an order nearly six months later, allowing the

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parties to file briefs addressing judgment on the pleadings. Order 5/6/15.

Twenty months after the May 6, 2015 order, Judge Clark disposed of the

substantive issues set forth in the Motion and addressed in the parties’

briefs, ruling in favor of Double M. Order, 1/17/17.

Upon review, we observe numerous breakdowns in the operation of

the trial court. First, Judge Hoover inexplicably entered the September 22,

2014 order in violation of Judge Tully’s July 17, 2014 order. See McCabe v.

Marywood Univ., 2017 PA Super 229, 166 A.3d 1257, 1261 (Pa. Super.

2017) (explaining that the coordinate jurisdiction rule provides that judges

of coordinate jurisdiction may not overrule each other’s decisions). Second,

although Appellants filed a motion for reconsideration of the September 22,

2014 order, the trial court did not expressly grant reconsideration within the

appeal period. See Pa.R.A.P. 1701(b)(3) (authorizing trial court to grant

motion to reconsider, but only if (1) motion to reconsider is filed within

appeal period; and (2) trial court expressly grants reconsideration within

appeal period); Valley Forge Center Associates v. Rib–It/K.P., Inc.,

693 A.2d 242, 245 (Pa. Super. 1997) (“With respect to the necessity of a

timely order ‘expressly granting’ reconsideration, ‘the establishment of a

briefing schedule, hearing date, or issuance of a rule to show cause does not

suffice.’”). Because the trial court did not grant reconsideration expressly

within the appeal period, it lost the power to act upon both the motion for

reconsideration and the underlying order of September 22, 2014. See

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Gardner v. Consol. Rail Corp., 100 A.3d 280, 283 (Pa. Super. 2014) (“If a

trial court fails to grant reconsideration expressly within the prescribed 30

days, it loses the power to act upon both the petition for reconsideration and

the original order.”).

Finally, Appellants did not file a timely appeal from the October 6,

2014 entry of judgment. See Pa.R.A.P. 903(a) (“[T]he notice of appeal . . .

shall be filed within 30 days after the entry of the order from which the

appeal is taken.”); Valley Forge Center, 693 A.2d at 245 (“[A]lthough a

party may petition the court for reconsideration, the simultaneous filing of a

notice of appeal is necessary to preserve appellate rights in the event that

either the trial court fails to grant the petition expressly within 30 days, or

denies the petition.”). Therefore, this appeal is defective. Accordingly, we

quash the appeal at 304 MDA 2017.

Appeals at 303 MDA 2017 and 304 MDA 2017 quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/28/2017

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