King v. Riverwatch Condominium Ass'n

18 Pa. D. & C.5th 318, 2010 Pa. Dist. & Cnty. Dec. LEXIS 584
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedNovember 16, 2010
Docketno. 08-50227
StatusPublished

This text of 18 Pa. D. & C.5th 318 (King v. Riverwatch Condominium Ass'n) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. Riverwatch Condominium Ass'n, 18 Pa. D. & C.5th 318, 2010 Pa. Dist. & Cnty. Dec. LEXIS 584 (Pa. Super. Ct. 2010).

Opinion

BURR, J.,

The plaintiff, Daniel King, has appealed from this court’s order denying his [320]*320motion for reconsideration of the order dismissing his motions for post-trial relief and to allow their refiling nunc pro tunc. The said motion was filed subsequent to the sustaining of the preliminary objection of the defendant, Riverwatch Condominium Owners Association, and striking the plaintiff’s motions for post-trial relief with prejudice on grounds that they had been untimely filed.

The plaintiff filed this lawsuit with the expectation of having the defendant reimburse him for costs expended to replace and jack up a defective steel horizontal beam in the roof of the garage situated on the lowest level of his four story condominium unit. Following decisions in plaintiff’s favor at the district justice and compulsory arbitration levels, the matter was assigned to this court for resolution sitting without a jury. The court, on June 21,2010, entered a verdict against the plaintiff on all of his claims, and in favor of the defendant on its counterclaim against the plaintiff in the amount of $8,500.17 representing fines and attorney fees deemed collectible from October 31, 2007 pursuant to the defendant’s rules and regulations, plus recoupment of the costs to defendant for making the necessary repairs in the defendant’s garage. (Rules and Regulations of the Riverwatch Condominium Association appended as exhibit E to the defendant’s answer to complaint with new matter and counterclaim, p. 5 “Miscellaneous” - “Litigation Against Council or Association by a Unit Owner”; notice memorandum from the defendant’s board of directors dated October 31, 2007 informing plaintiff of $100/day fine for each day he refused to allow the defendant to enter his unit and perform the necessary work. Id., Exhibit D)

The plaintiff’s appeal from the foregoing verdict of this court prior to the disposition of his motions for post-[321]*321trial relief was discontinued by the Pennsylvania Superior Court on the plaintiff’s praecipe prior to disposition of the defendant’s motion to quash the appeal for being non-cognizable. Chalkey v. Roush, 569 Pa. 462, 805 A.2d 491, 496 (2002)(after trial court enters decision at law or equity, an appellant must file post-trial motions before bringing appeal). Plaintiff’s motions for post-trial relief were dismissed with prejudice here below by an order docketed on June 21, 2010 on grounds that they had been untimely filed. The ensuing discussion will show that the plaintiff did not protect his appellate rights following that decision, but waited until after the court had ruled upon his motion to reconsider the order striking his motions for post-trial relief with prejudice and plea to refile them nunc pro tunc. The result was that the instant appeal was filed eight days after the 30-day deadline for filing an appeal from the court’s final order striking the plaintiff’s motions for post-trial relief with prejudice had lapsed.

The plaintiff has submitted the following concise statement of errors and rulings complained of on appeal asserting that dereliction by the Office of Judicial Support of this court caused lateness in his receipt of notice of the docketing of the verdict/judgment in this case that caused lateness in the filing of his motions for post-trial relief:

1. The [tjrial [cjourt erred in its interpretation of Pa.R.C.P. Rule 227.1 to the effect that the [p]laintiff must file Post-Trial Motions within 10 days after the physical entry in the docket of the court’s June 21, 2010 verdict/judgment. The court failed to apply and give effect to Pa.R.C.P. Rule 236 and Pa.R.C.P. 108. Pa.R.C.P. 236 (Rule 236) requires the Office of Judicial Support to provide a written notice to the [pjlaintiff’s [322]*322attorney of the entry of the verdict/judgment. Pa.R.C.P. Rule 108 provides that the date of entry of the verdict/ judgment for the purpose of filing Post-Trial Motions is the date on which the Office of Judicial Support gives the required notice to the [p] laintiff’s attorney.
2. The [t]rial [c]jourt erred in not allowing [pjlaintiff to file [p] ost- [t]rial [m]otions nunc pro tunc, because the failure of the Office of Judicial Support to notify the [p] laintiff’s attorney of the entry of the verdict/judgment is a breakdown of the court’s operation necessitating the grant of an appeal nunc pro tunc. West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Weiman By Trahey v. Philadelphia, 129 Pa. Commonwealth Ct., 25, 30, [564 A.2d 557] (1989).
3. The [t]rial [c]ourt erred in not following the rule set down in Weiman By [Trahey] v. Philadelphia [supra] holding that the entry in the docket is not conclusive as to whether the [pjrothonotary actually sent notice pursuant to the rules of civil procedure.
4. The [t]rial [c]ourt erred in not applying the precedent set down in Nixon v. Nixon, 329 Pa. 256, [198 Atl. 154] (1938), which held that the court [should] allow the filing of an appeal nunc pro tunc where the prothonotary failed to notify plaintiff’s attorney of the entry of an order.
5. The [t]rial [c]ourt erred in its conclusion that the mailing to [p] laintiff’s attorney by the court of a courtesy copy of the verdict/judgment, which did not contain any notation when it was entered in the docket, was proper notice to the attorney of its entry, because [323]*323it is established that there is no exception which allows actual or constructive notice from a source other than the Prothonotary to begin the running of the 10-day period for filing post trial motions. Dreher [Twp.] Bd. v. Solitron Develop Co., [333 Pa. Super. 33, 481 A.2d 1207] (1984).
6. The [t]rial [c]ourt erred in its failure to follow the precedent set down in and [sic] City of Phila v. Tasker, 119 Pa. Commonwealth Ct. 519, 535, [547 A.2d 1261] (1988), which held that lack of receipt of the required rule 236 notice constitutes a reasonable excuse for plaintiff not filing his post trial motions within 10 days of the entry of the verdict/judgment.
7. The [tjrial [c]ourt erred in not applying the precedent set forth in Berkowitz v. Mayflower Securities, Inc., 455 Pa. 531, 317 A.2d 584 (1974), where the Supreme Court held that presumption of receipt of mail is rebuttable by showing that the item was not received by the addressee.
8. The [t]rial court erred in not granting [plaintiff’s request to file post trial motions nunc pro tunc since the [pjlaintiff’s attorney did not actually receive a rule 236 notice because it was not mailed to him by the Office of Judicial Support and [plaintiff’s not timely filing of post trial motions was not due to inadvertence of his counsel. City of Phila v. Tasker, [supra].
9.

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Bluebook (online)
18 Pa. D. & C.5th 318, 2010 Pa. Dist. & Cnty. Dec. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-riverwatch-condominium-assn-pactcompldelawa-2010.