Kucek, J. v. Hahn, W.

• Court: Superior Court of Pennsylvania
• Decided: November 15, 2018
• Docket: 1488 EDA 2017
• Status: Unpublished

Opinion

J-A25002-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN KUCEK : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILLIAM HAHN D/B/A TOTAL CHEVY : AND H&W RENOVATIONS, INC. : D/B/A TOTAL CHEVY AND RAYMOND : No. 1488 EDA 2017 CONSTABLE : : : APPEAL OF: WILLIAM HAHN D/B/A : TOTAL CHEVY AND H&W : RENOVATIONS, INC. D/B/A TOTAL : CHEVY :

Appeal from the Judgment Entered January 21, 2016 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2014-04772

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 15, 2018

Appellants, William Hahn d/b/a Total Chevy and H&W Renovations, Inc.

d/b/a Total Chevy, appeal from the January 21, 2016 Judgment entered

against them in the Bucks County Court of Common Pleas.1 We quash this

appeal.

____________________________________________

1 In their May 8, 2017 Notice of Appeal, Appellants indicated that they were appealing from the January 21, 2016 Judgment entered on the trial court’s October 20, 2015 non-jury trial verdict. Prior to briefing, however, on May 23, 2017, the trial court prothonotary re-entered Judgment on that same verdict. For the reasons discussed infra, the May 23, 2017 entry of Judgment is a nullity, and this Court has amended the case caption to reflect that Appellants have taken this appeal from the initial final judgment. J-A25002-18

The facts underlying this matter are largely immaterial to our

disposition. Briefly, Appellee John M. Kucek purchased from Appellants a

vehicle Appellants marketed as a 1970 Chevrolet Corvette LT1/ZR1 for

$95,000. Sometime after his purchase of the vehicle, Appellee discovered

that Appellants had made a number of misrepresentations about the vehicle.

Appellee, therefore, filed an eight-count complaint raising claims of

Breach of Contract, Unjust Enrichment, Intentional Fraud, Negligent Fraud,

Unfair or Deceptive Trade Practices under the Unfair Trade Practices and

Consumer Protection Law, Conversion, Negligence, and Civil Conspiracy.

Following an October 20, 2015 non-jury trial, the court found that the

vehicle sold by Appellant was not an original or authentic 1970 Chevrolet

Corvette LT1/ZR1. Accordingly, on October 21, 2015, the court entered a

$125,0002 verdict for Appellee.

On November 16, 2015, Appellants filed an appeal from the court’s

verdict, prior to filing any Post-Trial Motion and before the court entered

Judgment on the verdict. See Kucek v. Hahn, No. 3527 EDA 2015. This

Court issued a Rule to Show Cause advising Appellants that their appeal was

defective, and, on January 20, 2016, Appellants filed a Praecipe to Discontinue

this appeal.

The trial court docket reflects that the next day—January 21, 2016—the

Bucks County prothonotary entered Judgment pursuant to praecipe on the ____________________________________________

2 This amount is comprised of the $95,000 contract value and $30,000 for attorney’s fees.

-2- J-A25002-18

trial court’s verdict. Importantly, Appellants did not file a timely Notice of

Appeal from the January 21, 2016 Judgment.

On January 26, 2016, Appellants filed a Petition for Leave to File Post-

Trial Motions Nunc Pro Tunc. On February 2, 2016, the trial court issued a

Rule to Show Cause why it should not grant Appellants’ Petition for Leave.

Briefing by the parties followed.

On October 3, 2016, the trial court granted Appellants’ Petition for

Leave. On October 20, 2016, Appellants filed a Post-Trial Motion, which the

trial court denied on October 21, 2016.

On November 17, 2016, Appellants filed an appeal purportedly from

both the October 21, 2015 verdict in Appellee’s favor and the October 21,

2016 Order denying their Post-Trial Motion. See Kucek v. Hahn, No. 3586

EDA 2016. Appellee filed a Motion to Quash the appeal, which this Court

granted on March 9, 2017 “without prejudice to Appellants’ right to file an

appeal from entry of judgment.”

Following remand to the trial court, Appellants sought entry of Judgment

on the court’s verdict. The lower court prothonotary refused to enter

Judgment on the verdict, correctly noting that it had previously entered

Judgment on January 21, 2016.

Appellants, thus, filed another Notice of Appeal to this Court referencing

the lower court’s October 21, 2015 verdict as the Order from which they

sought to appeal. See Kucek v. Hahn, No. 1107 EDA 2017. Appellee filed

yet another Motion to Quash the appeal, which, on May 4, 2017, this Court

-3- J-A25002-18

again granted “without prejudice to Appellants’ right to appeal from the entry

of Judgment.”

On May 8, 2017, Appellants filed the instant appeal from the “Order

entered in this matter on the 21st day of January, 2016.” On May 17, 2017,

Appellee again filed a Motion to Quash the appeal as untimely.3 On June 2,

2017, this Court denied Appellee’s Motion without prejudice to Appellee’s right

to raise this issue again before the merits panel.

Before we reach the merits of the issues raised on appeal, we must

determine whether we have jurisdiction over this matter. Here, the docket

reflects that the prothonotary entered Judgment on the trial court’s verdict in

Appellee’s favor on January 21, 2016. Accordingly, in order for their appeal

to be timely, Appellants were required to file a Notice of Appeal by February

22, 2016.4 See Pa.R.A.P. 903 (“the notice of appeal . . . shall be filed within

30 days after the entry of the order from which the appeal is taken.”).

Instantly, Appellants failed to file a timely Notice of Appeal within 30

days of the entry of final Judgment on the lower court’s verdict. Thus, this ____________________________________________

3 On May 18, 2017, notwithstanding that the trial court had already entered Judgment on January 21, 2016, this Court inexplicably entered an Order directing Appellants to praecipe the trial court to enter Judgment. Appellants complied with our directive, and on May 23, 2017, the trial court Prothonotary entered the same Judgment that it had already entered on January 21, 2016. Because the trial court had already entered Judgment, this Court’s directive was in error. See Pa.R.A.P. 105(b) (directing that no appellate court may enlarge the time for filing an appeal). Accordingly, the trial court’s May 23, 2017 Judgment is a legal nullity. 4February 20, 2016, the thirtieth day after the entry of Judgment, fell on a Saturday.

-4- J-A25002-18

Court lacks jurisdiction to consider the merits of this appeal. See

Morningstar v. Hoban, 819 A.2d 1191, 1194 (Pa. Super. 2003) (reiterating

the well-established principle that “the failure to file a timely appeal will divest

this Court of jurisdiction.”).

Moreover, the trial court lost jurisdiction over the instant matter after

the 30-day period following entry of the January 21, 2016 Judgment. See

Miller Elec. Co. v. DeWeese, 907 A.2d 1051, 1054 (Pa. 2006) (“A trial

court’s jurisdiction generally extends for thirty days after the entry of a final

order.”); see also 42 Pa.C.S. § 5505. Thus, the Orders entered by the trial

court after February 22, 2016, are legal nullities.

In sum, the instant appeal, filed on May 8, 2017, is untimely and this

Court lacks jurisdiction to review its merits.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/15/18

-5-