Towne, W. v. Hancock, J.

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2019
• Docket: 1797 WDA 2018
• Status: Unpublished

Opinion

J-S40031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM TOWNE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOHN HANCOCK AND HANCOCK : No. 1797 WDA 2018 CONTRACTING, INC. :

Appeal from the Order Entered November 20, 2018 In the Court of Common Pleas of Allegheny County Civil Division at No(s): AR 17-003961

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 08, 2019

William Towne (Towne), pro se, seeks review of an order entered in the

Allegheny County Court of Common Pleas (Court of Common Pleas) denying

as untimely his motion for acceptance of filing a notice of appeal following an

arbitration. We reverse the order and hold that Towne’s notice was timely

filed.

The following facts are gleaned from the certified record. This case

began with a dispute between Towne and John Hancock/Hancock Contracting,

Inc. (Hancock), who Towne had hired to make home improvements. Initially,

Towne obtained a judgment against Hancock in the Magisterial District Court.

The case then proceeded to compulsory judicial arbitration before a board of

arbitrators. See Pa.R.C.P. 1305.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S40031-19

On September 12, 2018, following an arbitration hearing, Hancock

prevailed. The award itself bore that date (September 12, 2018) and

contained a “Notice of Entry of Award” which stated that it had been “entered

upon the docket and notice thereof given by mail to the parties or their

attorneys.” Consistent with the award, the case docket has an entry dated

September 12, 2018, reading, “Notice of award sent.” However, the envelope

sent from the prothonotary1 to Towne containing notice that the award had

been entered against him shows a postmark date of September 14, 2018.

Towne mailed his notice of appeal to the Court of Common Pleas on

October 8, 2018, but it was not received until October 15, 2018.2 See

Pa.R.C.P. 1311(a) (providing that appeal from arbitration shall take the form

of a trial de novo, with no evidentiary limitations). The prothonotary refused

to recognize the filing of the appeal because the notice was received over 30

days after the arbitration award had been entered in the docket. Towne

moved the Court of Common Pleas to accept his notice of appeal as timely,

arguing in part as follows:

As per standard practice, the decision of the arbitrators was not announced at arbitration but only made available through a mailing of the decision afterward. As shown on the envelope used ____________________________________________

1 In Allegheny County, the Office of the Prothonotary, the Clerk of Courts, and the Register of Wills have been consolidated into the Department of Court Records (the Department). When we refer to “the prothonotary” here, it is a reference to the Department.

2 Towne and the Court of Common Pleas both complied with Pa.R.A.P. 1925.

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for mailing the decision, the envelope was not meter-stamped until September 14, 2018, and therefore could not have been mailed out until on or after September 14, 2018.

Motion for Acceptance of Filing, 11/5/2018, at ¶ 2. The motion was denied.

See Court of Common Pleas Order, 11/20/2018. Towne timely appealed its

denial and this appeal followed.

The Court of Common Pleas explained in its 1925(a) opinion that

Pa.R.C.P. 1308 “requires that an appeal from an arbitration award be filed ‘not

later than thirty days after the day on which the prothonotary makes the

notation on the docket that notice of the entry of the arbitration award has

been provided.’” 1925(a) Opinion, 1/3/2019, at 2-3. Since the award was

entered in the docket on September 12, 2018, the Court of Common Pleas

reasoned that Towne had failed to file his notice of appeal within the deadline

of October 12, 2018. Id.

In his brief, Towne asserts the following issues for our consideration:

1. Following issuance of an award in a compulsory judicial arbitration proceeding, does the thirty-day appeal period commence upon the date . . . of the decision, or the date when notice is mailed?

2. May a Court “sit on” or retain documents for as much time as it likes, to the extent where a party to a case may lose rights as a result?

3. Does the state retaining documents in advance of mailing, in a way that limits or prevents a recipient’s ability to request a civil trial, violate or infringe upon [constitutional rights]?

4. Do the facts of this case present a “fraud or breakdown in court operations” or “non-negligent circumstances” permitting filing of the appeal which the lower court denied?

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5. Does PA Rule of Appellate Procedure 121 offer guidance applicable to an appeal from a board of arbitration?

Appellant’s Brief, at 7-8.3

We find the first of the above issues to be dispositive and reverse the

order on review on that ground. Crucially, Towne appealed from the denial of

an arbitration award and, as such, Pennsylvania Rules of Civil Procedure

1307(a)(3) and 1308(a)(1) govern the timeliness of the notice of appeal now

in dispute.

Rule 1308(a)(1) provides that a notice of appeal must be filed with the

prothonotary “not later than thirty days after the day on which the

prothonotary makes the notation on the docket that notice of entry of the

arbitration award has been provided as required by Rule 1307(a)(3).” Rule

1307(a)(3) provides that when entering the arbitration award in the docket,

the prothonotary “shall . . . note in the docket the date of mailing the notice.”

In this case, the prothonotary entered the arbitration award into the

docket on September 12, 2018. Despite noting in that entry, “Notice of award

sent,” the notice was not mailed until two days later, on September 14, 2018.

By setting forth the incorrect mailing date in the docket entry, the

prothonotary failed to comply with Rule 1307(a)(3). See generally Stellar

Construction, Inc. v. Sborz, 748 A.2d 667, 669 (Pa. 2000) (holding that

____________________________________________

3 Hancock did not file an appellate brief.

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when entry of an order commences the period for filing an appeal, the date of

entry is defined as “[t]he date of service of [the] order . . ., which shall be the

date of mailing if service is by mail, 42 Pa.C.S. § 5572.”). Accordingly,

because September 12, 2018, was the incorrect mailing date, the docket entry

did not commence the 30-day filing period.4

The period for filing the notice could begin no sooner than September

14, 2018, the date notice was mailed to the parties pursuant to Rule

1307(a)(3). See Stellar, 748 A.2d at 669. This gave Towne until October

15, 2018, to file his notice of appeal because the 30th day after the start date

(October 14, 2018) fell on a Sunday, which is excluded from the computation

of time. See Pa.R.C.P. 106(b) (“Whenever the last day of any such period

shall fall on Saturday or Sunday . . . such a day shall be omitted from the

computation.”). Towne, in fact, filed his notice of appeal on the final day of

the period and the Court of Common Pleas erred in denying Towne’s motion

to accept the filing as timely.

4 Further, the prothonotary’s docket entry on September 12, 2018, could not trigger the notice of appeal period because the erroneous mailing date evidenced a “breakdown in the court operations” which justifies the reinstatement of Towne’s appellate rights. See Union Elec. Corp. v. Bd. of Prop. Assessment, 746 A.2d 581, 584 (Pa. 2000) (“[T]here is a breakdown in the court’s operations where an administrative board or body is negligent, acts improperly or unintentionally misleads a party.”); Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075 (Pa. Super. 2004) (“Cases involving a breakdown in court operations often involve a failure on the part of the prothonotary to fulfill his or her ministerial duties, such as the filing of dispositions and other relevant information on the appropriate docket, or giving notice of these dispositions to interested parties[.]”).

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Order reversed. Case remanded for trial de novo. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/2019

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