J-A11035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE TASA GROUP, INC. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RODERICK GRAHAM
Appellant No. 2301 EDA 2014
Appeal from the Order Dated July 15, 2014 In the Court of Common Pleas of Montgomery County Civil Division at No.: 2014-10262
BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED AUGUST 21, 2015
Roderick Graham, pro se, appeals the trial court’s July 15, 2014 order
quashing his petition to appeal nunc pro tunc. We affirm.
The trial court set forth the pertinent factual and procedural history of
this case as follows:
TASA Group, Incorporated [“TASA”] is a Pennsylvania corporation that delivers expert witness referrals to attorneys throughout the country. [Graham] is an attorney residing in Shelby County, Alabama. In July 2009, [Graham] engaged [TASA] to refer an expert witness to testify in an Alabama federal court case. As a result of [Graham’s] contact with [TASA], [TASA] referred [Graham] to an expert. Subsequent to the referral, [TASA] sent [Graham] a memorandum of confirmation detailing the agreement pertaining to the services rendered. This memorandum contained a clause stating that by his acceptance of the expert services, [Graham] agreed to concurrent exclusive jurisdiction and venue of the Montgomery County Court of Common Pleas of Pennsylvania [(“trial court”)] and the United States District Court for the Eastern District of Pennsylvania with respect to the enforcement of the contract. J-A11035-15
[TASA] filed a complaint against [Graham] alleging that [Graham] owed [TASA] a balance of $5,140.43 for its services. [TASA] mailed the complaint to [Graham] via certified mail in April 2011. [TASA] also mailed a notice of the hearing on April 4, 2011. The Montgomery County Magisterial District Court [(“magisterial court”)] held a hearing on May 2, 2011. [Graham] did not appear at the hearing, and immediately following the hearing, the [magisterial court] entered a default judgment against [Graham] in the amount of $5,300.30, representing the amount of the judgment as well as judgment costs. [Graham] received a copy of the default judgment on May 28, 2011. [Graham] did not file an appeal. This judgment was domesticated in the Circuit Court of Jefferson County, Alabama on October 12, 2011.
On May 6, 2014, [Graham] filed a petition to appeal nunc pro tunc the judgment of May 2, 2011. On May 20, 2014, [TASA] filed a motion to quash the appeal nunc pro tunc. On July 8, 2014, [the trial court] heard argument on the motion to quash. Subsequently on July 15, 2014, [the trial court] granted [TASA’s] motion to quash the appeal nunc pro tunc.
Trial Court Opinion (“T.C.O.”), 8/29/2014, at 1-2 (capitalization modified).
On August 5, 2014, Graham filed a notice of appeal, which was docketed in
this Court at 2301 EDA 2014 on August 14, 2014. The trial court did not
order Graham to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Graham did not file a concise statement.
However, on August 29, 2014, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Before this Court, Graham presents the following four issues for
appeal:
1. Whether the [trial court] erred in refusing to accept [Graham’s] notice of appeal based on fraud and lack of personal and subject matter jurisdiction until [Graham] file[d] a petition to appeal nunc pro tunc?
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2. Whether [Graham] can file an appeal to the [trial court] based on fraud and lack of personal jurisdiction and subject matter jurisdiction after [thirty] days of the execution of the magisterial court’s default judgment?
3. Whether [Graham] can file a petition to appeal nunc pro tunc based on a default judgment rendered based on a forged contract after [thirty] days of the execution of the magisterial court’s default judgment?
4. Whether the [trial court] erred in granting [TASA’s] motion to quash [Graham’s] petition to appeal nunc pro tunc, where [Graham] alleges the judgment is based on a feign [sic] invoice, and alleges that the [trial] court lacks personal and subject matter jurisdiction?
Brief for Graham at 5 (capitalization modified; italics added). These issues
are of a piece. We address them in a unitary discussion.
Our Supreme Court has characterized the purpose of nunc pro tunc
restoration of appellate rights as follows:
Allowing an appeal nunc pro tunc is a recognized exception to the general rule prohibiting the extension of an appeal deadline. This Court has emphasized that the principle emerges that an appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances. Generally, in civil cases an appeal nunc pro tunc is granted only where there was fraud or a breakdown in the court’s operations through a default of its officers.
Union Elec. Corp. v. Bd. Of Prop. Assessments, Appeals & Review of
Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000) (citations and internal
quotation marks omitted).
Our standard of review over an order denying nunc pro tunc
restoration of a petitioner’s appellate rights is deferent:
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The denial of an appeal nunc pro tunc is within the discretion of the trial court, and we will only reverse for an abuse of that discretion. Freeman v. Bonner, 761 A.2d 1193, 1194 (Pa. Super. 2000). In addition to the occurrence of “fraud or breakdown in the court’s operations,” nunc pro tunc relief may also be granted where the appellant demonstrates that “(1) [his] notice of appeal was filed late as a result of non[-]negligent circumstances, either as they relate to the appellant or the appellant’s counsel; (2) [he] filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay.” Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001).
Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075 (Pa. Super. 2004)
(citations modified; brackets in the original).1 “An abuse of discretion occurs
when a trial court, in reaching its conclusions, overrides or misapplies the
law, or exercises judgment which is manifestly unreasonable, or the result of
partiality, prejudice, or ill will.” U.S. Bank N.A. v. Mallory, 982 A.2d 986,
994 (Pa. Super. 2009).
In the present matter, TASA filed a complaint against Graham in April
2011. TASA also mailed Graham a notice of the hearing on April 2, 2011.
The magisterial court subsequently held a hearing on May 2, 2011, and
entered a judgment against Graham in the amount of $5,300.30. Graham
acknowledged having received notice of that hearing; however, he failed to
appear at the hearing. Notes of Testimony (“N.T.”), 7/8/2014 at 3-4.
____________________________________________
1 Graham narrows his argument to an alleged existence of fraud or breakdown in the court’s operation. Graham makes no argument with regard to the three-part test set forth by the Criss Court. See Criss, 781 A.2d at 1159.
-4- J-A11035-15
Graham also acknowledged that he received notice of the judgment on May
28, 2011. Id.2
Pa.R.C.P.M.D.J. 1002 provides:
A.
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J-A11035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE TASA GROUP, INC. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RODERICK GRAHAM
Appellant No. 2301 EDA 2014
Appeal from the Order Dated July 15, 2014 In the Court of Common Pleas of Montgomery County Civil Division at No.: 2014-10262
BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED AUGUST 21, 2015
Roderick Graham, pro se, appeals the trial court’s July 15, 2014 order
quashing his petition to appeal nunc pro tunc. We affirm.
The trial court set forth the pertinent factual and procedural history of
this case as follows:
TASA Group, Incorporated [“TASA”] is a Pennsylvania corporation that delivers expert witness referrals to attorneys throughout the country. [Graham] is an attorney residing in Shelby County, Alabama. In July 2009, [Graham] engaged [TASA] to refer an expert witness to testify in an Alabama federal court case. As a result of [Graham’s] contact with [TASA], [TASA] referred [Graham] to an expert. Subsequent to the referral, [TASA] sent [Graham] a memorandum of confirmation detailing the agreement pertaining to the services rendered. This memorandum contained a clause stating that by his acceptance of the expert services, [Graham] agreed to concurrent exclusive jurisdiction and venue of the Montgomery County Court of Common Pleas of Pennsylvania [(“trial court”)] and the United States District Court for the Eastern District of Pennsylvania with respect to the enforcement of the contract. J-A11035-15
[TASA] filed a complaint against [Graham] alleging that [Graham] owed [TASA] a balance of $5,140.43 for its services. [TASA] mailed the complaint to [Graham] via certified mail in April 2011. [TASA] also mailed a notice of the hearing on April 4, 2011. The Montgomery County Magisterial District Court [(“magisterial court”)] held a hearing on May 2, 2011. [Graham] did not appear at the hearing, and immediately following the hearing, the [magisterial court] entered a default judgment against [Graham] in the amount of $5,300.30, representing the amount of the judgment as well as judgment costs. [Graham] received a copy of the default judgment on May 28, 2011. [Graham] did not file an appeal. This judgment was domesticated in the Circuit Court of Jefferson County, Alabama on October 12, 2011.
On May 6, 2014, [Graham] filed a petition to appeal nunc pro tunc the judgment of May 2, 2011. On May 20, 2014, [TASA] filed a motion to quash the appeal nunc pro tunc. On July 8, 2014, [the trial court] heard argument on the motion to quash. Subsequently on July 15, 2014, [the trial court] granted [TASA’s] motion to quash the appeal nunc pro tunc.
Trial Court Opinion (“T.C.O.”), 8/29/2014, at 1-2 (capitalization modified).
On August 5, 2014, Graham filed a notice of appeal, which was docketed in
this Court at 2301 EDA 2014 on August 14, 2014. The trial court did not
order Graham to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Graham did not file a concise statement.
However, on August 29, 2014, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Before this Court, Graham presents the following four issues for
appeal:
1. Whether the [trial court] erred in refusing to accept [Graham’s] notice of appeal based on fraud and lack of personal and subject matter jurisdiction until [Graham] file[d] a petition to appeal nunc pro tunc?
-2- J-A11035-15
2. Whether [Graham] can file an appeal to the [trial court] based on fraud and lack of personal jurisdiction and subject matter jurisdiction after [thirty] days of the execution of the magisterial court’s default judgment?
3. Whether [Graham] can file a petition to appeal nunc pro tunc based on a default judgment rendered based on a forged contract after [thirty] days of the execution of the magisterial court’s default judgment?
4. Whether the [trial court] erred in granting [TASA’s] motion to quash [Graham’s] petition to appeal nunc pro tunc, where [Graham] alleges the judgment is based on a feign [sic] invoice, and alleges that the [trial] court lacks personal and subject matter jurisdiction?
Brief for Graham at 5 (capitalization modified; italics added). These issues
are of a piece. We address them in a unitary discussion.
Our Supreme Court has characterized the purpose of nunc pro tunc
restoration of appellate rights as follows:
Allowing an appeal nunc pro tunc is a recognized exception to the general rule prohibiting the extension of an appeal deadline. This Court has emphasized that the principle emerges that an appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances. Generally, in civil cases an appeal nunc pro tunc is granted only where there was fraud or a breakdown in the court’s operations through a default of its officers.
Union Elec. Corp. v. Bd. Of Prop. Assessments, Appeals & Review of
Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000) (citations and internal
quotation marks omitted).
Our standard of review over an order denying nunc pro tunc
restoration of a petitioner’s appellate rights is deferent:
-3- J-A11035-15
The denial of an appeal nunc pro tunc is within the discretion of the trial court, and we will only reverse for an abuse of that discretion. Freeman v. Bonner, 761 A.2d 1193, 1194 (Pa. Super. 2000). In addition to the occurrence of “fraud or breakdown in the court’s operations,” nunc pro tunc relief may also be granted where the appellant demonstrates that “(1) [his] notice of appeal was filed late as a result of non[-]negligent circumstances, either as they relate to the appellant or the appellant’s counsel; (2) [he] filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay.” Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001).
Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075 (Pa. Super. 2004)
(citations modified; brackets in the original).1 “An abuse of discretion occurs
when a trial court, in reaching its conclusions, overrides or misapplies the
law, or exercises judgment which is manifestly unreasonable, or the result of
partiality, prejudice, or ill will.” U.S. Bank N.A. v. Mallory, 982 A.2d 986,
994 (Pa. Super. 2009).
In the present matter, TASA filed a complaint against Graham in April
2011. TASA also mailed Graham a notice of the hearing on April 2, 2011.
The magisterial court subsequently held a hearing on May 2, 2011, and
entered a judgment against Graham in the amount of $5,300.30. Graham
acknowledged having received notice of that hearing; however, he failed to
appear at the hearing. Notes of Testimony (“N.T.”), 7/8/2014 at 3-4.
____________________________________________
1 Graham narrows his argument to an alleged existence of fraud or breakdown in the court’s operation. Graham makes no argument with regard to the three-part test set forth by the Criss Court. See Criss, 781 A.2d at 1159.
-4- J-A11035-15
Graham also acknowledged that he received notice of the judgment on May
28, 2011. Id.2
Pa.R.C.P.M.D.J. 1002 provides:
A. A party aggrieved by a judgment for money . . . may appeal therefore within thirty (30) days after the date of the entry of the judgment by filing with the Prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the State Court Administrator together with a copy of the Notice of Judgment issued by the magisterial district judge. The Prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than thirty (30) days after the date of entry of the judgment without leave of court and upon good cause shown.
Pa.R.C.P.M.D.J. 1002(A). The magisterial court entered a judgment against
Graham on May 2, 2011, thus, Graham had until June 1, 2011, to file an
appeal. Admittedly, Graham did not file an appeal before June 1, 2011.
Rather, Graham filed his petition to appeal nunc pro tunc with the trial court
on May 6, 2014—nearly three years past the June 1, 2011 deadline.
As previously mentioned, a trial court may grant an appeal nunc pro
tunc when a delay in filing is cause by extraordinary circumstances involving
fraud or some breakdown in the court’s operations through a default of its
officer. Fischer v. UPMC Nw., 34 A.3d 115, 120 (Pa. Super. 2011). ____________________________________________
2 In addition to the testimony in this case, in a separate but related lawsuit, Graham filed a complaint against TASA in the United States District Court for the Northern District of Alabama on April 22, 2013. In his complaint, Graham also acknowledges that he received notice of the judgment against him on May 28, 2011. Complaint for Graham, 4/22/2013 at 1.
-5- J-A11035-15
Graham’s sole argument alleging a breakdown in the court’s
operations is that TASA did not provide the magisterial court with his
complete address, and, as a result, Graham claims that he did not receive
timely notice of the magisterial court’s judgment within the thirty-day
statutory period. Brief for Graham at 14. Hence, Graham’s claims that
there was a breakdown in the court’s operations. However, his claim finds
no factual support in the record. To the contrary, Graham twice admitted
that he received timely notice of both the underlying lawsuit against him and
the resulting judgment. Consequently, Graham has failed to demonstrate
that there was a breakdown in the court’s operations.
Additionally, Graham claims that TASA “committed fraud by creating
the false and/or forged invoice/agreement to get a judgment and collect
bogus expert witnesses’ expenses.” Id. at 17. Graham’s claims, however,
are in no way directly or indirectly related to his failure to make a timely
appeal. Clearly, there is no connection between Graham’s claims of fraud on
behalf of TASA and his failure to make a timely appeal. See Fischer, 34
A.3d at 120 (granting an appeal nunc pro tunc when the appellant’s delay in
filing an appeal is the result of fraud or some breakdown in the court’s
operations).
In a final effort to relitigate the substantive claims of this lawsuit,
Graham raises general challenges to the magisterial court’s subject matter
and personal jurisdiction. Brief for Graham at 18-32. Specifically, Graham
argues that he never received a Memorandum of Confirmation, thus,
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Graham claims that he is not subject to the forum selection clause contained
within the Memorandum of Confirmation. Id at 16.
The above-mentioned Memorandum of Confirmation contained the
following clause:
Consent To Jurisdiction And Venue
You consent to the concurrent and exclusive jurisdiction and venue of the Montgomery County Court of Common Pleas of the Commonwealth of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania, with respect to the enforcement of this Memorandum, the collection of any amounts due under this Memorandum, or any disputes arising under this Memorandum.
Memorandum of Confirmation, 3/27/2009 at 2.
During the trial court hearing, however, Graham expressly admitted
that he received this Memorandum of Confirmation. N.T. at 14. Graham
also admitted that he paid the balance on the Memorandum of Confirmation,
thereby subjecting him to the jurisdictional clause. Id. Consequently,
Graham’s claim that he was not subject to the forum selection clause
contained with the Memorandum of Confirmation is meritless.
For all of the above-mentioned reasons, the trial court did not abuse
its discretion in denying Graham’s appeal.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/21/2015
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