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Daniel King v. Riverwatch Condominium Owners

July 21, 2011

DANIEL KING, APPELLANT
v.
RIVERWATCH CONDOMINIUM OWNERS ASSOCIATION



The opinion of the court was delivered by: Bonnie Brigance Leadbetter, President Judge

SUBMITTED: May 6, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY

PRESIDENT JUDGE LEADBETTER

Daniel King appeals from the September 3, 2010 order of the Court of Common Pleas of Delaware County denying his "petition for rule to show cause why the court should not reconsider its July 28, 2010 order dismissing his post-trial motion with prejudice as untimely filed and allow him to re-file it nunc pro tunc" based on the Delaware County Office of Judicial Support's (OJS) failure to send his counsel written notices of the entry of orders or judgments in compliance with Pennsylvania Rule of Civil Procedure No. 236(a)(2).*fn1 Because we conclude that the trial court did not abuse its discretion, we affirm. In addition, we remand this matter to the trial court for a determination of attorney's fees.*fn2

The relevant background of this case is as follows. In January 2008, King initiated legal action against the Riverwatch Condominium Owners Association (Association) seeking reimbursement for costs he expended to replace and jack up a defective horizontal steel beam in the roof of the garage located in the lowest level of his four-story condominium unit. As a result of a successful arbitration of the matter, King was awarded the sum of $3,577.93. Following the Association's subsequent petition for injunction and appeal from the arbitration award, the trial court conducted a non-jury trial. Ultimately, the court entered a June 21, 2010 verdict/judgment in favor of the Association and against King in the amount of $8,500.17 and sent courtesy copies to both attorneys. The docket entries reflect that the verdict/judgment was filed on June 21, 2010.

Counsel for King alleges that he first learned of the verdict on June 22nd from the courtesy copy and, on that basis, filed a July 2, 2010 motion for post-trial relief. The Association responded with a preliminary objection seeking to have the post-trial motion stricken as untimely filed, which the court sustained on July 28, 2010 pursuant to Pennsylvania Rule of Civil Procedure No. 227.1(c)(2) requiring post-trial motions to be filed within ten days after "the filing of the decision in the case of a trial without jury."

On July 30, 2010, counsel for King filed a praecipe for appearance. The record reflects that counsel for the Association entered his appearance on January 22, 2008. In any event, the trial court stated that King's delay in entering his appearance resulted in the OJS sending copies of orders or judgments only to counsel for the Association and to King himself in accordance with Pennsylvania Rule of Civil Procedure No. 236(a)(2), which provides as follows:

(a) The prothonotary shall immediately give written notice of the entry of

(2) any other order or judgment to each party's attorney of record or, if unrepresented, to each party. The notice shall include a copy of the order or judgment.

The docket entry for the June 21, 2010 filing of the court's verdict/judgment indicates that notices were sent pursuant to Rule 236 on that same day. On August 2, 2010, counsel for King filed a petition for rule to show cause why the court should not reconsider its order striking his post-trial motion and permit him to file it nunc pro tunc. The trial court held a hearing on the petition on September 1, 2010, ultimately denying King's petition based on counsel's failure to file a timely entry of appearance and counsel's admission at the hearing that he received the court's courtesy copy of the June 21st verdict on June 22nd thereby putting him on notice to check the docket entries for an actual filing date. Further, the court considered the fact that counsel never represented that King himself did not receive any notices of orders or judgments. The court, therefore, concluded as follows:

[C]counsel's waiting to file his client's Motions [sic] for Post-Trial Relief one day after the requisite deadline, of which he should have been aware during the preceding nine days, does not reach the level of a legally cognizable reason to blame the Court for his own failure to conform to a mandatory and unambiguous rule of Procedure with which he was required to comply in the best interests of his client.

Trial Court's November 16, 2010 Decision at 18 (footnote omitted). King's appeal followed.

We note that, notwithstanding the provision in Rule 227.1(c)(2) requiring the timely filing of post-trial relief, a trial court has discretion to consider untimely motions for such relief because the ten-day time period is not a jurisdictional requirement but merely a procedural rule, thereby permitting the court to disregard any defect or error of procedure that does not affect the parties' substantial rights. 1 Standard Pa. Prac. (2d ed.), Procedural Rules ยง 227.1(c):6 (2005). Accordingly, in situations such as this one where a party files untimely post-trial motions and the opposing party objects, the trial court must consider the ...


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