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Calabrese v. Zeager

May 22, 2009

JOHN J. CALABRESE & DEBORAH J. SHIRK, APPELLANTS
v.
P. THOMAS ZEAGER



Appeal from the Judgment Entered March 23, 2007, in the Court of Common Pleas of Lancaster County Civil Division at No. CI 04 - 05070.

The opinion of the court was delivered by: Ford Elliott, P.J.

Petition for Reargument Filed June 8, 2009

BEFORE: FORD ELLIOTT, P.J., DONOHUE AND POPOVICH, JJ.

¶ 1 Appellants, John J. Calabrese and Deborah J. Shirk ("Calabrese and Shirk"), appeal the judgment entered in favor of appellee, P. Thomas Zeager ("Zeager"), on March 23, 2007, pursuant to a complaint filed by Calabrese and Shirk which alleged that Zeager breached a Sanitary Sewer Easement and Sewage Treatment Agreement ("the Agreement"). Finding that Zeager did breach the Agreement, we reverse.

¶ 2 Preliminarily, we must address the facially untimely filing of the notice of appeal. Calabrese and Shirk filed their notice of appeal on May 2, 2007, forty days after the entry of judgment. On or about May 24, 2007, an attorney from this court's Central Legal Staff mailed a letter to counsel for the parties that requested counsel for Calabrese and Shirk to explain why the notice of appeal was not untimely as having been filed beyond the running of the 30-day appeal period. See Pa.R.A.P. 903(a). Counsel for Calabrese and Shirk promptly responded by letter dated May 29, 2007.

¶ 3 In his response, counsel noted the following relevant docket entry:

JUDGMENT - 3/23/2007 ENTERED IN FAVOR OF COURT PLAINTIFF AND AGAINST ORDER DEFENDANT, P. THOMAS ZEAGER, PURSUANT TO THE COURT [ORDER] DATED JANUARY 26, 2007. FILED BY GEORGE T. COOK ESQ. JUDGMENT ENTERED AS DIRECTED. RANDALL O. WENGER, PROTHONOTARY. NOTICE OF ENTRY OF JUDGMENT MAILED TO THE DEFENDANT.

Counsel observed that this entry mentions service of notice upon defendant Zeager only and that no service was made upon Calabrese and Shirk. Counsel further claimed that copies of the filed Praecipe and Notice of Entry of Judgment were not mailed until April 3, 2007, the date allegedly appearing on the envelope postmark. Counsel then called attention to the following Rule of Appellate Procedure which sets the date of entry of an order as the date the clerk makes the notation on the docket that notice has been mailed to the party:

Rule 108. Date of Entry of Orders

(a) General rule.

(1) Except as otherwise prescribed in this rule, in computing any period of time under these rules involving the date of entry of an order by a - - court or other government unit, the day of entry shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties, or if such delivery is not otherwise required by law, the day the clerk or office of the government unit makes such copies public. The day of entry of an order may be the day of its adoption by the court or other government unit, or any subsequent day, as required by the actual circumstances.

(b) Civil orders. The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).

Pa.R.A.P. 108(a)(1) and (b), 42 Pa.C.S.A.*fn1

¶ 4 Under this Rule, the appeal period does not begin to run until the clerk notes on the docket that notice of the entry of judgment has been sent to the prospective appellant. Counsel for Calabrese and Shirk asserts that since notice was not effectively mailed until April 3, 2007, appellant had 30 days from this date to file the notice of appeal.

¶ 5 The docket entry quoted by appellants' counsel is that which appears on Lancaster County's internet website. Unfortunately, the online version contains obvious errors.*fn2 The paper docket entry for March 23, 2007, as it appears in the ...


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