Kaduck, S. v. Mannke, R.

• Court: Superior Court of Pennsylvania
• Decided: April 29, 2019
• Docket: 1397 WDA 2018
• Status: Unpublished

Opinion

J-S09042-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

STEVE KADUCK, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : REGIS MANNKE, : : Appellant : No. 1397 WDA 2018

Appeal from the Order Entered September 6, 2018 in the Court of Common Pleas of Allegheny County Civil Division at No(s): AR-17-000094

BEFORE: PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 29, 2019

Regis Mannke appeals from the September 6, 2018 order of the trial

court, which denied his petition for leave to file a post-trial motion nunc pro

tunc. Upon review, we affirm.

This case arises from a dispute between Mannke and Steve Kaduck.

By way of background, Mannke is in the limousine sales business. Kaduck

owns and operates Trimco Auto Upholstery. During the summer of 2016,

Mannke asked Kaduck to perform some work on a limousine Mannke had

acquired. N.T., 1/22/2018, at 8. On August 31, 2016, Kaduck informed

Mannke that the work had been completed. Id. at 13.1 Mannke went to

inspect the vehicle and noticed that portions of it were not the color he

1 The transcript indicates the date is October 31, 2016; however, based upon the testimony, this is clearly an error. It should read August 31, 2016.

* Retired Senior Judge assigned to the Superior Court. J-S09042-19

believed he had requested. Id. According to Kaduck, because Mannke

needed the limousine for his business, Mannke accepted the limousine and

indicated he would contact Kaduck if Mannke wanted Kaduck to change the

color. Id. at 13-14. According to Mannke, Kaduck would not let him take

the limousine from the shop until Mannke paid for the work. Id. at 36. In

any event, Mannke gave Kaduck a check for $2,750, and Mannke left the

shop with the limousine. Id. at 14.

According to Kaduck, Mannke called him the following day to tell him

that Mannke was not happy with the color. Id. Kaduck claimed he offered to

change the color, and the two agreed that Mannke would bring the limousine

back the following Tuesday. Id. at 14-15. Mannke never dropped off the

vehicle, and when Kaduck went to cash the check, it bounced. Id. at 15.

Kaduck learned Mannke had put a stop payment on the check.2 Id. Kaduck

and Mannke could not come to a resolution, and Kaduck filed pro se a

complaint against Mannke at the magisterial district court, asserting a claim

for the $2,750.

On December 13, 2016, the magisterial district judge entered a verdict

in favor of Kaduck and against Mannke for $2,905.77.3 Mannke filed an

appeal to the Court of Common Pleas, which was referred to the arbitration

2 Mannke testified that he put a stop payment on the check “the minute [he] left” Kaduck’s shop. N.T., 1/22/2018, at 36.

3 This amount included interest and court costs.

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division. On April 5, 2017, the panel of arbitrators found in favor of Mannke.

Kaduck filed an appeal for a trial de novo in the Court of Common Pleas. A

non-jury trial was held by the Honorable Michael F. Marmo on January 22,

2018.

Both parties appeared pro se and testified as discussed supra. On

January 24, 2018, the trial court entered a verdict in favor of Kaduck and

against Mannke for $1,842.50. On February 2, 2018, Mannke filed a motion

for reconsideration,4 requesting the trial court dismiss the case. On March

14, 2018, Mannke filed a motion to place an additional defendant on the

docket. The parties appeared for argument, and the trial court denied the

motions on March 19, 2018. In addition, the trial court entered a

“corrected” non-jury verdict the same day. The corrected verdict only

increased the award to Kaduck by four dollars.

Mannke pro se timely filed a notice of appeal to this Court from the

March 19, 2018 corrected verdict, which was docketed at 532 WDA 2018.

On July 25, 2018, this court, via a per curiam order, dismissed the appeal

sua sponte because Mannke did not file a post-trial motion after the March

19, 2018 corrected verdict.

4 Post-trial motions must be filed within 10 days after the entry of a verdict. See Pa.R.C.P. 227.1(c)(1). However, “this ten-day period does not commence until the prothonotary sends notice of the decision to the parties.” U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 390 (Pa. Super. 2015). Here, the verdict was entered on January 22, 2018, but not filed and served until January 24, 2018. Thus, Mannke’s post-trial motion, filed February 2, 2018, was timely.

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Mannke then retained counsel. On August 23, 2018, Mannke, through

counsel, filed with the trial court a motion for leave to file a post-trial motion

nunc pro tunc. He argued, inter alia, that the trial court should permit him

to file a post-trial motion nunc pro tunc because “it is not clear that even

seasoned counsel would have been aware of the necessity to file additional

requests for relief after the issuance of the corrected verdict.” Motion for

Leave to File Motion for Post-Trial Relief Nunc Pro Tunc, 8/23/2018, at ¶ 36.

The trial court denied that motion without argument on September 6, 2018.5

Mannke timely filed a notice of appeal from that order. Both Mannke and

the trial court complied with Pa.R.A.P. 1925.

On appeal, Mannke contends that the trial court erred in denying his

motion for leave to file a post-trial motion nunc pro tunc.6 See Mannke’s

Brief at 4. Specifically, Mannke claims that the trial court’s entering a

corrected verdict created confusion as to whether new post-trial motions

were necessary. Id. at 21.

“The decision to allow the filing of a post-trial motion nunc pro tunc is

vested in the discretion of the trial court. We will not reverse unless the trial

5 Mannke timely filed a motion for reconsideration of that order, wherein he requested the trial court hold argument on the motion for leave to file a post-trial motion nunc pro tunc. Motion for Reconsideration, 9/24/2018, at ¶¶ 6-7. On September 25, 2018, the trial court denied that motion.

6 Kaduck has elected not to file a brief in this appeal. Kaduck’s Letter, 1/28/2019 (“I have chosen not to file a brief.”).

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court abused its discretion.” Lenhart v. Cigna Companies, 824 A.2d 1193,

1195 (Pa. Super. 2003) (internal citation omitted).

An abuse of discretion is not merely an error of judgment but is found where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will as shown by the evidence or the record.

Allowance of an appeal[7] nunc pro tunc lies at the sound discretion of the trial judge. More is required before such an appeal will be permitted than the mere hardship imposed upon the appellant if the request is denied. As a general matter, a trial court may grant an appeal nunc pro tunc when a delay in filing [an appeal] is caused by extraordinary circumstances involving fraud or some breakdown in the court’s operation through a default of its officers. … Our Supreme Court has made it clear that the circumstances occasioning the failure to file an appeal must not stem from counsel’s negligence or from a failure to anticipate foreseeable circumstances.

Id. at 1195–96 (internal citations and quotation marks omitted,

capitalization altered).

Instantly, in his motion to the trial court, Mannke did not allege any

“extraordinary circumstances involving fraud or some breakdown in the

court’s operation through a default of its officers.” Id. at 1196. In fact,

Mannke recognizes the well-settled principle that despite his pro se status at

the time he failed to file a post-trial motion, his “ignorance of the Rules of

Civil Procedure may not serve as an adequate excuse.” Motion for Leave to

7 This Court and our Supreme Court use the same standards in addressing claims for leave to file a post-trial motion nunc pro tunc and leave to file an appeal nunc pro tunc. See D.L. Forrey & Assocs., Inc. v. Fuel City Truck Stop, Inc., 71 A.3d 915, 922 (Pa. Super. 2013).

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File Motion for Post-Trial Relief Nunc Pro Tunc, 8/24/2018, at ¶ 35.

However, he claims that this Court’s decision in Vietri v. Delaware Valley

High School, 63 A.3d 1281 (Pa. Super. 2013), is analogous and entitles

him to relief. Id. at ¶ 45; Mannke’s Brief at 24-25.

In Vietri, Vietri initially sought to appeal an order granting summary

judgment. However, prior to filing a notice of appeal, Vietri filed a motion

for post-trial relief. This Court sent a letter to Vietri explaining that his

appeal “may be premature because … post-trial motions [had been] filed.”

Id. at 1282. Vietri then requested that the trial court rule on the post-trial

motion. Prior to a ruling by the trial court, this Court quashed Vietri’s

appeal. The trial court subsequently denied Vietri’s post-trial motion, and

Vietri filed a notice of appeal. This Court once again quashed Vietri’s appeal

as being an untimely-filed appeal from an order granting summary

judgment. This Court pointed out that Vietri could seek nunc pro tunc relief

in the trial court. Vietri filed a motion for leave to appeal nunc pro tunc with

the trial court, and the trial court denied it, and Vietri filed a notice of appeal

to this Court from that order.

In considering whether the trial court erred in denying Vietri nunc pro

tunc relief, this Court concluded that this Court’s quashing of Vietri’s first

appeal “complicated the situation” and therefore rose to the level of “a

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breakdown in this Court that interfered with [Vietri’s] right to appeal.”8 Id.

at 1289. Thus, this Court reversed the order of the trial court and permitted

an appeal nunc pro tunc, because responsibility for the “tortured path” of the

case was caused by actions of “[Vietri], this Court, and the trial court.” Id.

at 1282.

Instantly, we have a different situation before us. Mannke pro se filed

a notice of appeal without having filed post-trial motions after a non-jury

verdict.9 This Court concluded that no issues had been preserved for review,

which required Mannke to seek nunc pro tunc relief in the trial court. In

doing so, the trial court had to evaluate whether Mannke was asserting

8 This Court pointed out that post-trial motions are procedurally impermissible after the entry of summary judgment, and the trial court should have treated Vietri’s post-trial motion as either a motion for reconsideration or a nullity. Thus, this Court concluded that the letter indicating the first appeal may be premature due to the pendency of post- trial motions was “misleading.” Id. at 1289.

9 Arguably, post-trial motions may not have to be filed for a “corrected” verdict. See Vautar v. First Nat’l Bank of Pennsylvania, 133 A.3d 6, 12 (Pa. Super. 2016) (en banc) (holding that requiring appellants to initiate a second round of post-trial motions after the trial court issued an amended/supplemental verdict “would have been fruitless, a waste of judicial resources, and would not have furthered the underlying purposes of Rule 227.1”). However, Mannke, who was acting pro se, did not raise that argument to this Court in response to the rule to show cause in his prior appeal. In addition, Mannke did not make that argument to the trial court in his motion for leave a post-trial motion nunc pro tunc, or in this appeal. An appellate court “will not act as counsel and will not develop arguments on behalf of an appellant.” In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012). Thus, we agree with the trial court that Mannke has waived any issue regarding whether a post-trial motion had to be filed from the corrected verdict. See Trial Court Opinion, 11/16/2018, at 2 (unnumbered).

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“extraordinary circumstances involving fraud or some breakdown in the

court’s operation through a default of its officers.” Id. at 1196. In his

motion, Mannke did not assert any error by either the trial court or this

Court in handling the prior appeal;10 and our review of the record reveals

that there was none. Mannke’s appeal was dismissed by this Court due to

Mannke’s failure to comply with Pa.R.C.P. 227.1(c)(1), which possibly

occurred because Mannke was proceeding pro se. See Vann v.

Unemployment Compensation Board of Review, 494 A.2d 1081, 1086

(Pa. 1985) (pointing out that pro se litigant must to some extent assume the

risk that his lack of legal training will prove his undoing); Commonwealth

v. Abu-Jamal, 555 A.2d 846, 852 (Pa. 1989) (noting that pro se litigant “is

subject to same rules of procedure as is a counseled defendant; he has no

greater right to be heard than he would have if he were represented by an

attorney”); Jones v. Rudenstein, 585 A.2d 520, 522 (Pa. Super. 1991)

(pointing out that pro se litigant not absolved of complying with procedural

rules and courts have no affirmative duty to walk pro se litigant through the

rules). Thus, we conclude that the trial court did not err in denying Mannke

10 Mannke claimed that the trial court created “significant confusion” by considering the purportedly untimely filing of Mannke’s post-trial motion from the original verdict. Motion for Leave to File Motion for Post Trial Relief Nunc Pro Tunc, 9/10/2018, at ¶ 46. However, as discussed supra, that motion was timely filed.

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relief.11 See Lenhart, 824 A.2d at 1197-98 (holding that the “grant of nunc

pro tunc relief is not designed to provide relief to parties [who had] not

followed proper procedure in preserving appellate rights”).

Mannke also contends the trial court erred in denying his motion for

leave to file a post-trial motion nunc pro tunc without holding argument.

Mannke’s Brief at 31-34. Specifically, Mannke claims that pursuant to

Allegheny County Local Rule 227.1, Mannke’s motion for leave to file a post-

trial motion nunc pro tunc should have been treated itself as a post-trial

motion, which requires argument prior to disposition. See Allegheny County

Local Rule 227.1(1)(a) (“Argument shall be scheduled by the [t]rial [j]udge

without praecipe.”).

Mannke raised this issue for the first time in his motion for

reconsideration. However, “[r]aising an issue for the first time in a motion

for reconsideration … does not rescue that issue from waiver.” Meyer-

11 We recognize that the trial court did not apply the “extraordinary circumstances” standard in denying Mannke relief. D.L. Forrey & Assocs., Inc., 71 A.3d at 921. As indicated supra, the trial court denied Mannke’s request on the basis that Mannke could have and should have raised those arguments to this Court. See Trial Court Opinion, 11/16/2018, at 2 (unnumbered). We conclude the trial court erred in this regard. The trial court was permitted to exercise its discretion to consider whether Mannke asserted “extraordinary circumstances to excuse [his] failure to file post-trial motions.” D.L. Forrey & Assocs., Inc., 71 A.3d at 921.

Nevertheless, based on our reasoning as outlined supra, Mannke was not entitled to the relief he sought. “It is well-settled that this Court may affirm a trial court’s ruling on any basis.” Commonwealth v. Kennedy, 151 A.3d 1117, 1127 (Pa. Super. 2016).

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Chatfield Corp. v. Bank Fin. Servs. Grp., 143 A.3d 930, 938 n.4 (Pa.

Super. 2016). Thus, this issue is waived.

Even if Mannke did not waive this issue, he would not be entitled to

relief. A motion for leave to file a post-trial motion nunc pro tunc is

decidedly not a post-trial motion, and therefore, the trial court did not err by

not holding argument in accordance with Allegheny County Local Rule

227.1(1)(a).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/2019

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