Dubeck, D. v. Dubeck, F. ( 2023 )

J-A14025-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DANIEL L. DUBECK AND STEPHANIE : IN THE SUPERIOR COURT OF
DUBECK : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 2628 EDA 2022
FRANCIS DUBECK, JEFFREY DUBECK :
AND JOAN DUBECK :
Appeal from the Order Dated September 9, 2022
In the Court of Common Pleas of Chester County Civil Division at No(s):
2020-00809-RC
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 15, 2023
Daniel and Stephanie Dubeck (“Appellants”) appeal from the Order
entered September 9, 2022, denying their petition for the leave to file a post-
trial motion nunc pro tunc. The trial court found that Appellants had not
presented “extraordinary circumstances” to support their request. After
careful review, we affirm.
After a two-day bench trial in late June 2022, the court rendered a
verdict on July 27, 2022, finding in favor of Appellees, Francis, Joan, and
Jeffrey Dubeck, in Appellants’ ejectment action.1 The court also found in favor
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1 A broad overview of the underlying facts is the following: Appellees Francis
and Joan Dubeck agreed to transfer title by Deed of their residential property
to Appellants and within a year of the title transfer, Appellants were to have
obtained a mortgage of $400,000, the proceeds of which would be held by
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of Appellees on their counterclaim for rescission for lack of consideration and
directed Appellants to convey title by quitclaim deed and vacate the property
within 30 days. Appellants did not file a post-trial motion or praecipe the court
to enter judgment on the verdict.2
On August 17, 2022, Appellants filed a notice of appeal. Appellants’
current counsel entered an appearance in the lower court on August 18, 2022.
On August 19, 2022, the trial court ordered Appellants to file a Pa.R.A.P.
1925(b) Statement.
On August 25, 2022, Appellant filed an application for leave to file a
post-trial motion nunc pro tunc. On September 9, 2022, the trial court entered
an Order denying Appellant’s Motion for Leave to File Post-Trial Motions Nunc
Pro Tunc.
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Appellees for their living expenses during their lives with the remainder of the
proceeds to be divided evenly between their two other sons, Appellant’s
brothers. Appellants also agreed that they would pay $30,000 of the
outstanding balance of the home equity loan within a year of the title transfer.
The intention of this arrangement was to sell the property to Appellants while
allowing Appellees to remain on the first floor of the house with a life estate.
After the title was transferred by Deed for $1.00, Appellees borrowed another
$30,000 to renovate the second floor for Appellants and their children.
Appellants did not provide any funds to Appellees as agreed and Appellants
refused to do so. Instead, Appellants filed an ejectment action against
Appellees.
2 Appellants did file a first notice of appeal from the verdict.
A verdict entered
after trial is not a final order; a judgment entered on the verdict is the final,
appealable order. Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa. Super. 2004);
Davanzo v. Finelli, 437 A.2d 995, 996 (Pa. Super. 1981). Because the appeal
was interlocutory, the trial court maintained jurisdiction to entertain
Appellants application for leave to file a post-trial motion nunc pro tunc.
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On October 4, 2022, Appellants filed a notice of appeal. They submitted
a court-ordered Rule 1925(b) Statement and the trial court responded by
directing our attention to its September 9, 2022 Order which explained its
reasons for denying Appellants’ request for leave to file a post-trial motion
nunc pro tunc.3
Appellants raise one issue asserting that the trial court erred refusing to
grant them leave to file a post-trial motion nunc pro tunc. See Appellants’ Br.
at 4.
In order to preserve issues for appeal, it is mandatory that parties file
post-trial motions. Lane Enterprises, Inc. v. L.B. Foster Co., 710 A.2d 54,
54 (Pa. 1998); Pa.R.C.P. 227.1. Pursuant to Rule 227.1(c), post-trial motions
must be filed within 10 days of a verdict. “Our Court has consistently refused
to entertain appeals from orders or verdicts following nonjury trials in actions
at law when no post-trial motions have been filed.” Lenhart v. Cigna
Companies, 824 A.2d 1193, 1196 (Pa. Super. 2003). See, e.g., Krystal
Development Corp. v. Rose, 704 A.2d 1102, 1103 (Pa. Super. 1997)
(without post-trial motions after a nonjury trial, there are no issues preserved
for appellate review).
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3 After Appellants filed their October 4, 2022 notice of appeal, this Court
directed Appellants, via a Rule to Show Cause, to praecipe the lower court to
enter judgment. Appellants did so on January 11, 2023, and we discharged
the Rule to Show Cause, noting that the merits panel would determine the
propriety of this Appeal.
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Where a party seeks leave to file a post-trial motion nunc pro tunc, “the
decision to allow the filing of a post-trial motion nunc pro tunc is vested in the
discretion of the trial court. We will not reverse unless the trial court abused
its discretion.” Lenhart, 824 A.2d at 1195.
A trial court will grant permission to file a post-trial motion nunc pro
tunc only where there is a circumstance involving fraud or some breakdown
in the court’s operation. See D.L. Forrey & Assocs., Inc. v. Fuel City Truck
Stop, Inc., 71 A.3d 915, 921 (Pa. Super. 2013)(noting that “[a] court may
grant an appeal nunc pro tunc when a party shows that he/she was unable to
file the appropriate motion due to some extraordinary circumstances involving
fraud or some breakdown in the court's operation through a default of its
officers.” (citation and internal quotation marks omitted)). “The grant of nunc
pro tunc relief is not designed to provide relief to parties whose counsel has
not followed proper procedure in preserving appellate rights.” Lenhart, 824
A.2d at 1197-98.
Here, the trial court concluded that relief is not warranted. See Order,
9/9/22, at n.1. The court observed:
Neither [Appellants’] Motion nor the Affidavit of Daniel Dubeck
provide any explanation why [Appellants] failed to timely file their
post-trial motions within ten days of the date of the [c]ourt’s
decision. Boilerplate assertions, without more, cannot provide a
basis for nunc pro tunc relief.
By granting leave for [A[ppellants] to file nunc pro tunc, post-trial
Motions, the [c]ourt may also be faced with having to grant an
appeal, nunc pro tunc. The right to post-trial relief, nunc pro tunc,
“is intended as a remedy to vindicate the right to an appeal where
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the right has been lost due to certain extraordinary
circumstances.” Union Electric Corporation v. Board of
Property Assessment, Appeals & Review of Allegheny
County, 746 A. 2d 581, 584 (Pa. 2000) (citation omitted).
Generally, an appeal nunc pro tunc is only granted in civil cases
where there was fraud or a breakdown in the court’s operations.
Lee v. Guerin, 735 A.2d 1280, 1281 (Pa. Super. 1999) [ ].
Here, Plaintiffs have failed to satisfy this standard. Because a
review of the record reveals that both of [Appellants’] trial
attorneys each received notice of the filing of the [c]ourt’s decision
of July 27, 2022[,] there appears to be no non-negligent reason
why [Appellants] failed to timely file their post-trial motions within
ten days of the July 27 Decision. Trial counsel’s failure to comply
with the Rule of Court does not create a new basis for nunc pro
tunc relief.
After careful review, we conclude that the trial court did not abuse its
discretion in denying Appellants leave to file a post-trial motion nunc pro tunc.
As the trial court observed, Appellants did not present any evidence of an
extraordinary circumstance of fraud or a breakdown in the court’s
operations. In their brief, Appellants assert only that trial counsel did not file
the post-trial motion because they had not paid their outstanding fee. This is
not an extraordinary circumstance.
Accordingly, we affirm the order denying leave to file a post-trial motion
nunc pro tunc.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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