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Byers v. Liggett

Superior Court of Pennsylvania

November 15, 2013

STEPHEN J. BYERS
v.
ERNEST LIGGETT AND MARILYN KOSTIK LIGGETT, Appellants

NON-PRECEDENTIAL DECISION

Appeal from the Order Dated January 9, 2012, in the Court of Common Pleas of Allegheny County Civil Division at No. GD 09-13539

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN AND SHOGAN, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Ernest Liggett and Marilyn Kostik Liggett appeal, pro se, from the order of January 9, 2012, denying their petition for leave to appeal nunc pro tunc. We grant appellee's motion to quash the appeal as to Marilyn Liggett, and otherwise affirm. In addition, since their appeals in this matter, the Liggetts have filed with this court a "Motion to Compel Immediate Decision to Obviate Sale, " on September 16, 2013, and an "Application for Expedited Injunctive Relief, " on October 2, 2013.

The Honorable Judith L.A. Friedman has aptly summarized the procedural history of this matter as follows:

This case was commenced on July 29, 2009, when a judgment in the Court of Common Pleas of Fayette County was transferred to Allegheny County. The judgment was in favor of Plaintiff, Stephen J. Byers, and against Defendants, Ernest E. Liggett and Marilyn K. Liggett, in the amount of $145, 500.00. A Writ of Execution was served on both Defendants, and discovery in aid of execution took place. On November 3, 2011, the Honorable Robert J. Colville of this Court entered an Order granting Defendants' Emergency Motion to Stay Sheriff's Sale, and directing the Sheriff to postpone the sale of Defendants' residence from November 7, 2011 to March 5, 2012. On the same date, Judge Colville also entered an Order granting Plaintiff's Motion for Entry by Sheriff for Personal Property Levy. That Order provided that
1. The Sheriff of Allegheny County is hereby Ordered to use whatever means available to the Sheriff to gain entry to Judgment Debtor's residence at 43 Bowstone Road, Churchill, PA 15235; including and not limited to forcible entry.
2. The Sheriff shall use this order of entry in conjunction with the satisfaction of the judgment particularly for the execution of writ of possession issued by the clerk of this court.
3. Nothing in this Order shall authorize the Sheriff to take possession of or otherwise place a levy upon the defendant's [sic] property without further Order of Court. Defendants shall not dispose of any personal property.
On November 14, 2011, Defendants filed a Motion to Continue Trial Date, seeking to postpone the trial which had been set for November 28, 2011. That Motion was granted by the Honorable Ronald W. Folino on November 23, 2011, in an Order setting a date of January 30, 2012 for the call of the non-jury trial.
On December 8, 2011, counsel for Plaintiff presented a Motion to Proceed with Sheriff's Sale of Defendants' personal property. That Motion was presented to the undersigned, who was then sitting as the General Motions Judge. We entered an Order postponing the levy and sale of Defendants' personal property until March 6, 2012, which was mistakenly thought to be the date that the sale of Defendants' residence was scheduled to take place.
On January 3, 2012, Defendants filed a Petition for Leave to Appeal Nunc Pro Tunc, which, as mentioned above, was also in the nature of a Petition to Open the $145, 500 judgment which had been transferred from Fayette County. That Petition was presented to the undersigned as Motions Judge on January 9, 2012. We entered an Order denying the Petition.

Trial court opinion, 3/16/12 at 2-4.

Initially, we note that the original notice of appeal was signed only by Ernest Liggett. (Id. at 2.) An amended notice of appeal with Marilyn Liggett's signature was not filed until the Liggetts were put on notice by the trial court that any attempt to include Marilyn Liggett in the appeal was null and void. (Id.) See Spirit of the Avenger Ministries v. Com., 767 A.2d 1130 (Pa.Cmwlth. 2001) (non-attorneys may not represent parties before the Pennsylvania courts). Notice of appeal was ineffective as to Marilyn Liggett. Therefore, we will grant appellee's motion to quash the appeal with respect to Marilyn Liggett.

Appellant seeks to appeal the underlying judgment from Fayette County, which was entered by stipulation in 2008. Appellant alleges negligent conduct on the part of his former attorney and argues that equity demands he be permitted to appeal nunc pro tunc.

The denial of an appeal nunc pro tunc is within the discretion of the trial court, and we will only reverse for an abuse of that discretion. Freeman v. Bonner, 761 A.2d 1193, 1194 (Pa.Super.2000). In addition to the occurrence of "fraud or breakdown in the court's operations, " nunc pro tunc relief may also be granted where the appellant demonstrates that "(1) [his] notice of appeal was filed late as a result of nonnegligent circumstances, either as they relate to the appellant or the appellant's counsel; (2) [he] filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay." Criss v. Wise, 566 Pa. 437, 781 A.2d 1156, 1159 (2001).

Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075 (Pa.Super. 2004).

Instantly, appellant is arguing his former attorney who handled the Fayette County litigation was negligent. According to appellant, his former lawyer assured them they could appeal the entry of judgment at any time, and rejected their offer to attend the proceedings personally. (Trial court opinion, 3/16/12 at 6.) Appellant alleges the attorney was subsequently suspended from the practice of law in late 2009. (Id.) However, nunc pro tunc relief may only be granted where the appeal is filed late as a result of non-negligent circumstances, which do not include counsel's negligence or lack of diligence. Rothstein, supra. Furthermore, as Judge Friedman observes, judgment was entered in 2008, appellant claims their lawyer was suspended in late 2009, but the instant petition was not filed until January 2012. (Trial court opinion, 3/16/12 at 7-8.) Appellant's petition is manifestly untimely, and the trial court did not abuse its discretion in denying it.[1]

Motion to quash granted as to Marilyn Liggett. Appellant's Motion to Compel Immediate Decision to Obviate Sale, filed September 16, 2013 is denied. Appellant's Application for Expedited Injunctive Relief, filed October 2, 2013 is denied. Order affirmed.

Judgment Entered.


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