HARRISBURG – One member of a Superior Court of Pennsylvania panel recently dissented from the majority decision in a civil action on the grounds that the majority's use of unsubstantiated hearsay "fudges" the time when an appeal notice was received – a point upon which the validity of the entire appeal rested.
Superior Court Judge Dan Pellegrini on April 22 issued a dissent in Kelley Et.Al v. Harr, claiming majority judges John T. Bender and Mary Jane Bowes botched a key timeline point in the decision of the case.
It all stemmed from a civil action initiated by plaintiffs John Kelley and Tricia Kelley against defendant Todd Harr in a magisterial court. A judgment was entered on Aug. 28, 2018, in the amount of $9,500, in favor of the Kelleys and against Harr.
On Sept. 25, 2018, Harr filed a pro se appeal in the Bedford County Court of Common Pleas but failed to file a proof of service regarding his notice of appeal, as required under Pennsylvania law. As a result, the trial court granted the Kelleys’ praecipe to strike the appeal.
Harr subsequently obtained counsel and filed a motion to reinstate his appeal on Dec. 19, 2018. The trial court denied the motion by order of court dated Feb. 4, 2019. The order was docketed and sent out to the parties on Feb. 5, 2019, and Harr had until March 7, 2019, to file an appeal.
According to Harr, he mailed a notice of appeal to the office of the Bedford County Prothonotary on Feb. 27, 2019, and it was timely received by the prothonotary on March 4, 2019. But the notice was not time-stamped and docketed, until March 13, 2019, six days after the appeal deadline elapsed.
Harr alleged the delay in the filing of his appeal “was caused by a breakdown in the court’s operations and non-negligent circumstances” and submitted a declaration from his counsel’s assistant, Karen Marraccini.
She claimed she spoke with Bedford County Prothonotary’s Office worker Barbara Himmler on March 4, 2019, who said the fee amount of $128.75 submitted to file the appeal was incorrect and that the actual amount should have been $57.00. Himmler allegedly added that the matter was not time-sensitive and she would mark the appeal as having been filed that day.
She later testified in court on Harr’s behalf that she “received the check on March 13, 2019 in the amount of $57.00 and returned the wrong check amount the same day.” Himmler also confirmed that the envelope was post-marked on Feb. 27, 2019, but she could not recall on what date she had received the notice of appeal.
That precise date not being established would prove key in the matter’s analysis.
Harr lost his pursuit for an appeal in the trial court on July 30, 2019, leading him to appeal to the Superior Court. Both Bender and Bowes felt the trial court had erred in its analysis and decision-making process.
“It is abundantly clear that Mr. Harr’s appeal should have been deemed valid and filed immediately upon receipt, regardless of whether it was accompanied by the proper filing fee. Ms. Himmler lacked the authority to reject the timely-filed notice of appeal, even if she deemed it to be defective,” Bender said in the majority decision.
“We also find it worth noting that, upon learning of the mistake regarding the filing fee, Mr. Harr proceeded in a timely manner to mail a check in the correct amount, and that the original check mailed to the prothonotary was for an amount substantially greater than the actual requisite filing fee.”
As the majority, Bender and Bowes opted to reverse the trial court decision and remand to the Bedford County Court of Common Pleas for further proceedings.
Their colleague, Judge Pellegrini, completely disagreed in his dissent.
“I wish I could join with the majority in this case, especially in view of the whiff of ‘welcome stranger’ influences that may be involved here. However, I cannot do so because the majority ‘fudges’ a salient fact in this case – the date that the notice of appeal was received in the Bedford County Prothonotary’s Office, as the trial court found, was not established. Accordingly, I respectfully dissent,” Pellegrini said.
For Harr’s appeal to have been timely from the Feb. 5, 2019 decision of the Bedford County Court of Common Pleas order, his notice of appeal would had to have been received by Friday, March 7, 2019.
But, the appeal notice was not time-stamped and docketed until March 13, 2019, six days after the appeal deadline. Therefore, the trial court denied Harr’s request for appeal because there was no evidence to show when exactly it was received by the prothonotary.
Pellegrini said the majority used unsubstantiated “hearsay” which was not formally admitted into evidence to judge when the appeal notice was received.
“It arrives at its conclusion…by relying on the written unsworn ‘declaration’ of Marraccini that stated that on March 4, 2019, she received a phone call from Himmler of the Bedford County Prothonotary’s Office stating that the filing fee that her office sent was incorrect, and that Ms. Himmler was holding the appeal until the correct amount was received,” Pellegrini stated.
“Ignoring all that, the majority then extrapolates that Ms. Marraccini’s statement has to be correct because it correlates with Ms. Himmler’s handwritten note on the Feb. 27, 2019 cover letter, which read: ‘Returned wrong amount. Should have been $57.00. Sent check on 3-13-19.’ It does not, however, contain a notation of when it was received.”
Pellegrini said while Himmler’s notes on the letter and envelope “appear to show that she withheld filing the notice of appeal until she received a new check, they still do not prove on what date she received the notice of appeal, as nether contains any notation of when the notice was received.”
On that basis, Pellegrini affirmed the decision of the trial court in his dissent.
Superior Court of Pennsylvania case 1332 WDA 2019
Bedford County Court of Common Pleas case 1008-2018
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com