Park Place Condominium Association v. F. Ambrosia

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Park Place Condominium Association : : v. : No. 127 C.D. 2017 : Submitted: September 22, 2017 Frank Ambrosia, : Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: December 21, 2017

Before this Court is the pro se appeal of Frank Ambrosia (Appellant) from the October 7, 2016 order of the Court of Common Pleas of Northampton County (Trial Court) denying Appellant’s petition to appeal nunc pro tunc from a non-jury verdict awarding damages to Park Place Condominium Association (Association). For the following reasons, we affirm the order of the Trial Court. On January 16, 2016, the instant matter proceeded to a non-jury trial and that same day the Trial Court entered a verdict in favor of the Association and awarded damages in the amount of $17,889.25. The verdict was filed on January 28, 2016; neither party filed post-trial motions in the requisite ten (10) day filing period and, accordingly, judgment was entered on February 8, 2016. On April 4, 2016, the Trial Court received a letter from Appellant that it treated as a motion for post-trial relief. The Trial Court denied the motion as untimely on April 8, 2016. On September 6, 2016, the Trial Court received an unfiled Petition to Appeal Nunc Pro Tunc (Petition) from Appellant; the Trial Court filed the Petition on September 7, 2016 and issued a Rule to Show Cause scheduling a hearing on the Petition for

September 30, 2016. On October 7, 2016, the Trial Court issued a written order denying the Petition. Appellant appealed the Trial Court’s order to the Superior Court and per the December 13, 2016 order noting this Court’s jurisdiction over proceedings related to not-for-profit corporations, see 42 Pa. C.S. § 762(a)(5)(i) & (ii), the Superior Court transferred this matter to this Court for review.1 Appellant argues that the Trial Court erred by overlooking testimony offered by the Association’s witnesses that clearly supports a verdict in Appellant’s favor. Appellant puts forth this argument based on the mistaken belief that to succeed on his Petition for a late appeal he must show that the Trial Court overlooked evidence in the record. However, Appellant’s argument is premised on the incorrect standard. In order to demonstrate that Appellant is entitled to appeal nunc pro tunc, Appellant must show that the delay in filing was caused by extraordinary circumstances such as fraud, a breakdown in the court’s operations or unique and compelling non-negligent circumstances related to the appealing party, counsel, or a third party. Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001); Borough of Duncansville v. Beard, 919 A.2d 327, 330-331 (Pa. Cmwlth. 2007); Schofield v. Department of Transportation, Bureau of Driver Licensing, 828 A.2d 510, 512 (Pa. Cmwlth. 2003). Appellant has not argued that any extraordinary circumstances existed to prevent him from perfecting a timely appeal and our review of the record reveals no such extraordinary circumstances. Accordingly, the order of the Trial Court is affirmed.

_______________ ______________________ JAMES GARDNER COLINS, Senior Judge

1 This Court’s standard of review of a denial of an appeal nunc pro tunc is whether the trial court abused its discretion or committed an error of law. Starwood Airport Realty v. School District of Philadelphia, 115 A.3d 410, 413 n.6 (Pa. Cmwlth. 2015).

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Park Place Condominium Association : : v. : No. 127 C.D. 2017 : Frank Ambrosia, : Appellant :

ORDER

AND NOW, this 21st day of December, 2017, the order of the Northampton County Court of Common Pleas in the above-captioned matter is AFFIRMED.

_______________ ______________________ JAMES GARDNER COLINS, Senior Judge