J-A02031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWIN C. HAINES, T/D/B/A ECHO,                       IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

LOFTY HACKENBERG AND TINA
HACKENBERG, PARTNERS T/A LOFTY’S
RESTAURANT,

                            Appellants                   No. 887 MDA 2015


                 Appeal from the Order Entered April 29, 2015
                In the Court of Common Pleas of Snyder County
                       Civil Division at No: CV-0263-2013


BEFORE: PANELLA, STABILE, and FITZGERALD, JJ.*

MEMORANDUM BY STABILE, J.:                            FILED OCTOBER 28, 2016

        Appellants, Lofty L. Hackenberg, et al., (Hackenberg) appeal from the

April 29, 2015 order of the Court of Common Pleas of Lebanon County,

denying Hackenberg’s petition to allow an appeal nunc pro tunc from the

November 20, 2014 award of board of arbitrators.            Following review, we

affirm.

        On November 20, 2014, the Snyder County Prothonotary’s Office

entered a notice of entry of award of arbitrators, entering judgment in favor

of Edwin C. Haines, t/d/b/a ECHO (ECHO) in the amount of $25,000 plus

interest from November 20, 2014.               On Thursday, December 18, 2014,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Hackenberg’s counsel sent, via UPS Next Day Air, a notice of appeal from

the award of the board of arbitrators to the Snyder County Prothonotary’s

Office. On January 5, 2015, Hackenberg’s counsel received a letter, dated

December 29, 2014, from the Snyder County Prothonotary returning the

notice of appeal as untimely because it was received on Wednesday,

December 24, 2014, beyond the filing deadline of Monday, December 22,

2014.

        On January 9, 2015, Hackenberg filed a petition to allow appeal from

award of board of arbitrators nunc pro tunc. The same date, the trial court

entered an order directing Hackenberg to file a brief, ECHO to respond and

file a brief, and scheduled a hearing. A hearing was held on April 29, 2015,

at which time the parties agreed the facts were undisputed.        After the

hearing, the trial court entered an order denying Hackenberg’s petition to

allow appeal from the award of board of arbitrators nunc pro tunc. On May

26, 2015, Hackenberg filed a notice of appeal.           On June 8, 2015,

Hackenberg filed a concise statement of matters complained of on appeal.

        On appeal, Hackenberg’s sole argument is that the trial court abused

its discretion when it denied the petition to allow appeal from the award of

board of arbitrators nunc pro tunc. See Appellants’ Brief at 4.

        It is well settled that that the standard of review of a denial of a

petition to appeal nunc pro tunc is whether the trial court abused its

discretion. See Union Elec. Corp. v. Bd. Of Prop. Assessment, Appeals

and Review of Allegheny Cty., 746 A.2d 581, 583 (Pa. 2000). “An abuse

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of discretion is not merely an error of judgment but is found where the law is

overridden   or   misapplied,   or   the   judgment   exercised   is   manifestly

unreasonable, or the result of partiality, prejudice, bias or ill will as shown

by the evidence of the record.”       Freeman v. Bonner, 761 A.2d 1193,

1194–95 (Pa. Super. 2000) (citation omitted).

      Pursuant to Pennsylvania Rule of Civil Procedure 1308, a notice of

appeal from an arbitration award must be filed “with the prothonotary of the

court in which the action is pending not later than thirty days after the day

on which the prothonotary makes the notation on the docket that notice of

entry of the arbitration award has been provided.” Pa.R.C.P. No. 1308(a).

When a party does not file a timely notice of appeal, in “extraordinary

circumstances involving fraud or some breakdown in the court’s operation

through a default of its officers[,]” a trial court may grant nunc pro tunc

relief. See Nagy v. Best Home Services, Inc., 829 A.2d 1166, 1167 (Pa.

Super. 2003) (citation omitted).

      The Pennsylvania Supreme Court in Criss v. Wise, 781 A.2d 1156,

1159 (Pa. 2001), recognized that the Bass v. Commonwealth Bureau of

Corr., et al., 401 A.2d 1133 (Pa. 1979) Court expanded the limited

exceptions for allowing an appeal nunc pro tunc. Id. Nunc pro tunc relief is

permissible where


             the appellant proves that: (1) the appellant’s notice of
             appeal was filed late as a result of non-negligent
             circumstances, either as they relate to the appellant or
             appellant’s counsel; (2) the appellant filed the notice of


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            appeal shortly after the expiration date; and (3) the
            appellee was not prejudiced by the delay.

Criss, 781 A.2d at 1159 (citation omitted).

     The factual situation in this matter is nearly identical to the situation in

Criss.   In Criss, an arbitration panel entered an award of judgment on

November 25, 1998, and the deadline for filing a notice of appeal was

December 28, 1998. Id. at 1157–58.          On December 22, 1998, counsel

directed a receptionist at the law firm to mail the notice of appeal; the

matter was placed in the mailbox at 5:10 p.m. on December 22.             Id. at

1158. On December 29, the Prothonotary entered judgment after receiving

a praecipe to enter judgment pursuant to arbitration award.            Id.   The

Prothonotary received the notice of appeal on December 30 and returned it

to counsel as the time for filing an appeal had expired. Id. at 1159. The

Court held that because delays in mailing are both foreseeable and

avoidable, “failure to anticipate a potential delay in the mail was not such a

non-negligent circumstance for which an appeal nunc pro tunc may be

granted.” Id. at 1160.

     In the matter sub judice, counsel for Appellants attempted to

anticipate a delay in the mail by sending the notice of appeal via UPS Next

Day Air on Thursday, December 18, 2014; however, counsel did not follow

up to determine whether the shipment was delivered timely. In the age of

online tracking of shipments, determining whether a package is timely

delivered is neither burdensome nor time consuming.          Counsel knew the

filing deadline was Monday, December 22, 2014, and assumed the risk by

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sending a time sensitive notice of appeal using UPS Next Day Air.                 See

Criss, 781 A.2d at 1160. Similarly, a simple phone call to the Office of the

Prothonotary on December 22, 2014, could have informed counsel that the

notice of appeal was not received.             Additionally, like Criss,1 this delay in

mailing occurred during the holiday season and counsel should have

recognized that delays are likely to occur. Id. As the trial court noted, the

only factual difference between the instant matter and Criss, is that counsel

for Hackenberg used UPS Next Day Air rather than the United States Postal

Service.    As counsel did not act with due diligence, and this Court is

constrained by the holding and rationale of Criss, we find that the trial court

did not abuse its discretion when it found that Hackenberg failed to prove

that the late filing was as a result of non-negligent circumstances.

       In conclusion, we find that the trial court did not abuse its discretion

when it denied Hackenberg’s petition or leave to file appeal nunc pro tunc.

Accordingly, we affirm the April 29, 2015 order denying said petition.




____________________________________________


1
  The Criss Court noted that “[w]e recognize that the notice of appeal was
mailed during the holiday season, which may have caused the U.S. Postal
Service to deliver the notice of appeal to the Prothonotary later than usual.
However, we find that regardless of the season, an appellant has a duty to
suspect delays when mailing a notice of appeal.” Criss, 781 A.2d at 1160
n.3.



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     Order affirmed.

     Judge Panella joins this memorandum.

     Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2016




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