Towne, W. v. Hancock, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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* Retired Senior Judge assigned to the Superior Court.
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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
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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
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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.
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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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