Osei, M. v. Sugarhouse Casino

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MICHAEL OSEI IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellant v.

SUGARHOUSE CASINO, ALEXIS R. KROLL, WENDY HAMILTON, TONI DILACQUA

Appellees No. 919 EDA 2016 Appeal from the Order Entered February 19, 2016 in the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 2664 June Term 2015

BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 22, 2016

Michael Osei (“Appellant”) appeals from an order entered February 19, 2016 by the Philadelphia County Court of Common Pleas denying his Motion for Nunc Pro Tunc Appeal and Nunc Pro Tunc Order Modification (“nunc pro tunc motion”). After careful review, we affirm.

This matter stems from Appellant’s amorous pursuit of Alexis Kroll, a cocktail waitress at Sugarhouse Casino, which resulted in the State Police bringing summary criminal harassment charges against Appellant. Ms. Kroll did not receive a subpoena notifying her of the date and time of Appellant’s harassment hearing, however, and so she did not appear to testify. As a result, the Philadelphia Municipal Court dismissed the case.

Thereafter, acting pro se, Appellant brought the instant action in which he claimed, inter alia, that because the Municipal Court dismissed the harassment charges, he is entitled to defense attorney’s fees1 and the return of tips he gave to Ms. Kroll. On May 21, 2015, following a hearing, the Municipal Court entered judgment in favor of Appellees. The trial court summarized the further relevant procedural posture of this matter as follows:

On June 19, 2015, [Appellant] filed an appeal to [the trial court] from the Municipal Court judgment entered in favor of [Sugarhouse Casino, Alexis Kroll, Wendy Hamilton, and Toni Dilacqua (collectively “Appellees”)] and subsequently filed a Complaint on July 17, 2015. On August 6, 2015, [Appellees] filed Preliminary Objections to the Complaint, which [the trial court] sustained without prejudice for [Appellant] to file a properly pleaded Amended Complaint. On October 16, 2015, [Appellant] filed an Amended Complaint to which [Appellees] filed Preliminary Objections on November 9, 2015. On

[2] December 7, 2015, [the trial court] sustained [Appellees’] Preliminary Objections and dismissed the amended Complaint with prejudice. On January 21, 2016, [Appellant] filed an untimely Motion for Reconsideration[,] which this [c]ourt denied on January 22, 2016. On January 26, 2016, [Appellant] filed an untimely Notice of Appeal to the Superior Court.[3] On January 25, 2016, [Appellant] filed [the instant nunc pro tunc motion], to which [Appellees] filed their opposition on February 16, 2016, and [the trial court] denied the motion on February 19, 2016. [4] On March 22, 2016, [Appellant] filed [a] Notice of Appeal to the Superior Court.[5]

Trial Court Pa.R.A.P. 1925(a) Opinion, filed May 20, 2016 (“1925(a) Opinion”), at pp. 1-2 (internal footnotes omitted).

Appellant raises the following two issues for our review: 1. WHETHER, the Trial Court erred and abused its discretion denying Appellant’s (substituted) amalgamated motion for nunc pro tunc relief to appeal the order entered on December 8, 2015, and motion for nunc pro tunc order despite supporting evidence(s) showing cause for delayed appeal for about 18 days, as well as the trial Court’s failure to do the following: (i) without allowing Appellant to reply to Appellees’ response against the nunc pro tunc motions demanding certain specifics; (ii) without holding any evidentiary hearing; (iii) without articulating any reason, explanation, grounds, analysis, findings of facts, and conclusions of law on the face of both the trial Court’s order and section 1925 opinion denying the nunc pro tunc reliefs.

2. WHETHER, Strong Public Policy and the demands of justice requires this Court to look beyond form to set aside procedural rules and grant nunc pro tunc reliefs in the interests of justice for Appellant.

Appellant’s Corrected Brief,6 pp. 3-4 (verbatim).

Appellant’s claims challenge the trial court’s denial of Appellant’s nunc pro tunc motion. In reviewing a trial court’s decision not to allow an appeal nunc pro tunc, we are mindful that

[a]llowance of an appeal nunc pro tunc lies at the sound discretion of the [t]rial [j]udge. This Court will not reverse a trial court’s denial of a motion for leave to appeal nunc pro tunc unless there is an abuse of discretion. An abuse 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 or the record.

Fischer v. UPMC Nw., 34 A.3d 115, 120 (Pa.Super. 2011) (internal quotations and citations omitted).

Our Supreme Court has characterized the purpose of nunc pro tunc restoration of appellate rights as follows:

Allowing an appeal nunc pro tunc is a recognized exception to the general rule prohibiting the extension of an appeal deadline. This Court has emphasized that the principle emerges that an appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances. Generally, in civil cases, an appeal nunc pro tunc is granted only where there was fraud or a breakdown in the court’s operations through a default of its officers.

Union Elec. Corp. v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000) (internal quotations and citations omitted). Our Supreme Court has held that nunc pro tunc relief may also be granted where an 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 the appellant’s counsel; (2) the appellant filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay.

Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001).

Here, Appellant claims that a non-negligent circumstance occasioned the late filing of his nunc pro tunc motion. See Appellant’s Corrected Brief, pp. 29-30. Additionally, Appellant claims a court officer misled him by informing him that weekends and holidays were not to be included in the calculation of the 30 days he had to appeal the trial court’s order denying his request to file his appeal nunc pro tunc. Id. at 38-41. Finally, Appellant claims a “breakdown in [c]ourt operations and litigation support facilities during the holiday season” occasioned his failure to timely file his notice of appeal. Id. at 41. These arguments merit no relief.

Initially, we find unconvincing Appellant’s claim that his grandmother’s death was a non-negligent circumstance upon which the trial court should have granted his nunc pro tunc motion. The record reveals Appellant’s grandmother passed away on or about September 15, 2015, and that her funeral services occurred in Ghana on November 14-15, 2015. The death of a family member nearly four months before the expiration of an appeal period and/or the occurrence of funerary rituals completed nearly two months prior to the expiration of an appeal period does not represent a non- negligent circumstance that excuses such a late filing, Appellant’s unspecified “temporary neuropsychological issues” notwithstanding.

Next, Appellant claims that he improperly calculated the time period7 to timely file his notice of appeal based on the incorrect advice of an unidentified “clerk” of an unspecified court provided over the telephone regarding the 2015 Municipal Court appeal of this matter to the Court of Common Pleas. See Appellant’s Corrected Brief, p. 38; Plaintiff’s Memo of Law in Support of Nunc Pro Tunc Reliefs [sic], etc., RR. 1466a. While Appellant admits he did not consult the Pennsylvania Rules of Appellate Procedure to ascertain the correct appeals period,8 Appellant claims a “judicial officer” informed him that the proper calculation of the 30 day time period to appeal excluded all the intervening weekends and holidays. See id. Although this Court has previously allowed untimely appeals where an appellant received improper advice from the trial court, Appellant’s undocumented and unverifiable claim that he received erroneous advice from an unidentified employee of a unspecified court regarding unrelated lower court appeal procedures fails to persuade this Court that the trial court erred in refusing to grant nunc pro tunc relief. Compare Commonwealth v. Anwyll, 482 A.2d 656, 657 (Pa.Super. 1984) (refusing to dismiss untimely appeal where trial court record reflected that the court purported to extend 30-day period).

Additionally, that the time Appellant alleges he excluded as a result of the alleged conversation he had with a clerk of a Pennsylvania court approximately and conveniently lines up with the amount of time by which Appellant untimely filed his nunc pro tunc motion fails to convince this Court of the veracity of Appellant’s claim of misinformation.9

Finally, Appellant’s claim that the holiday season occasioned his failure to timely file his notice of appeal does not afford Appellant relief. See Appellant’s Corrected Brief, p. 41. Simply put, we find unconvincing Appellant’s claim that “the intervening ephemeral holiday season at the time i.e. Christmas Day, New Year’s Day, and MLK Day . . . presented a ‘breakdown in the operations of the [c]ourt’ affecting litigation support for pro se [Appellant] also because of the lack of access to litigation support facilities including the research libraries of the [c]ourts.” Id. While Pennsylvania’s courts, and their attendant support services, were, in fact, closed on Christmas and New Year’s Day,10 these annual closures were predictable, known, and certainly did not prevent Appellant from employing available court resources on any other days during Appellant’s appeal period.

For the above reasons, we do not find the trial court abused its discretion in denying Appellant’s nunc pro tunc motion. Accordingly, we affirm the order of the trial court.

Order affirmed. Appellant’s Application for Stay and Motion for Vacatur, both filed December 5, 2016, are denied as moot.

Judge Ott joins the Memorandum.

Judge Solano concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary Date: 12/22/2016