Petition for Writ of Certiorari — Canoe Manufacturing Manufacturing Manufacturing Co., Inc. v. Jones (No. 06-1059)

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Supreme Court, US

} FILED

061059 J4n 26 2007

No. Orriv& OF THE CLERK

IN THE

Supreme Court of the United States

CANOE MANUFACTURING COMPANY, INC.

AND M. ROBERT ULLMAN,

Petitioners

JOSEPH H. JONES, ESQUIRE AND

WILLIAMSON, FRIEDBERG & JONES,

Respondents

On Petition for Writ of Certiorari

to the Superior Court of Pennsylvania

PETITION FOR WRIT OF CERTIORARI

JOSEPH R. VIOLA, ESQ.

Counsel of Record

1900 Spruce Street

Philadelphia, PA 19103

(215) 893-0700

Counsel for Petitioners

QUESTION PRESENTED FOR REVIEW

Whether a “GVR” Order should issue to remedy the

palpably clear violation of Petitioners’ Due Process

and Equal Protection rights committed when their

timely State court appeal -- filed on the 29th day of a

mandatory 30-day period in full compliance with

State procedural rules and controlling precedent --

was nevertheless quashed as “untimely” at the behest

of their opponents, in complete disregard of the

applicable procedural rules and controlling case law,

and in reliance on a heretical alternative “rule” of

timeliness espoused by Petitioners’ opponents as a

means of defeating appellate consideration of

Petitioners’ claims.

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RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

Petitioner Canoe Manufacturing Company,

Inc., is a Pennsylvania Business Corporation of which

Petitioner M. Robert Ullman is Chief Executive

Officer and sole shareholder. Canoe Manufacturing

has no parent corporation and no publicly-held

company holds any of Canoe Manufacturing’s stock.

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........ i

RULE 29.6 CORPORATE DISCLOSURE

Pe re re es eh een ere ii

TABLE OF AUTTEIORETES 2c ccc ccc cveccecens Vv

CEI xb n bdcekswecencdehenuewes 1

PS er en en eine pe 1

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND REGULATIONS

EIN VUELV Eee) GEN EERE GAAIOED oe es ececcuevvevenss 1

STATEMENT OF THE CASE .................. 3

REASONS FOR GRANTING THE WRIT ....... 14

MEE 6.5< vee verbsuvetseedsebesnen 25

CONTENTS OF APPENDIX

U.S. Const. Amend. XIV Section 1 ............. la

i, 3+ 8 SPOT Te Te la

Pe Ce, Be ee ob on oo dabeeeeeeacerns la

P37, Bot Bey. | t | Peery Pree 2a

GE Fe Sa ED 6 v0 Sb wees éeeseeee ones 3a

Oe re Ss vies sh dv eueueseeseeneewe 3a

SS Pu, CE. Se wn cvcnvecscseceeucess 3a

43 Pa. GB. SERBIA) on ccc cake ce wcvesevces 4a

Oe Sa EE ca heeewsescebsvveeuseeaee 4a

Pak See a EE Seek eee ens be eee nee ean 6a

Pe, AT, Se BB OOD 6 6b.0 5 cet ne ceewen 5a

Ph, Bae cg SE IND ac 6 oo rk 2 4d ee ee eae 4a

Pu He Ge a es ko woe beawe scenes 5a

Superior Court Internal Operating Procedures,

-jv-

§§ 65.7, 65.9, 65.12, 65.22, 210 Pa. Admin. Code

tf me fe 8. eS. Sere ee 7a

Docket Entries, Court of Common Pleas of

Schuylkill County (excerpted) ................ 10a

Opinion of Cyrus Palmer Dolbin, J. ........... 12a

Order of Palmer, J. dated December 30, 2005 ... 18a

Praecipe to Enter Judgment filed January 9,

esha aga Sire ar A ad ree dt ig id arg 19a

Notice of Filing of Judgment filed January 9,

ee ers aro der tn Sane Oe PG nay ts 21a

Notice of Appeal filed February 7,2006 ........ 23a

Civil Docketing Statement filed March 2, 2006 .. 24a

Motion to Quash Appeal filed February 24,

DI Gaba eure See ns Alar ae aS 39a

Answer to Motion to Quash filed March 13,

BR ee re rere te he ere 47a

Reply to Response to Motion to Quash filed

I SN iar ei ee ee ay Sarg 64a

Per Curiam Order dated April 12, 2006 granting

I a ras a rs ear a oe 77a

Application for Reargument En Banc filed April

EE Seok s-6 sac wed «acca ae eae sehen 78a

Answer to Application for Reargument filed

Es os a bs a oe ea oe ae aad eee es 95a

Order dated May 5, 2006 denying Application

a ass re uu euie eek en wes 107a

Petition for Allowance of Appeal filed June 2,

SE 6 ba ck abe dca eee kh de bub er eee es 108a

Brief in Opposition to Petition for Allowance of

Appeal filed June 15, 2006 ................. 13la

Order dated November 1, 2006 denying

Petition for Allowance of Appeal ............. 143a

-V-

TABLE OF CITED AUTHORITIES

CASES

Arizona v. Rumsey, 467 U.S. 208 (1984) ........ 23

Boag v. MacDougall, 454 U.S. 364 (1982) ....... 14

Boys Markets, Inc. v. Retail Clerks, 398 U.S.

EE Gs eae caked beware ede haere ae 22

Cardwell v. Chrysler Financial Corp., 804

We TE Cs TE. DB) on ck vc ce cwen ected 17

Commonwealth v. Dorman, 272 Pa. Super.149,

ee ee te ee boo chk oak de dk eewekiseres 19

Commonwealth v. White, 910 A.2d 648

I oe ae iy Uae G ah oa 23

Eaton v. Tulsa, 415 U.S. 697 (1974) ............ 15

Frazier v. City of Philadelphia, 557 Pa. 618,

yi & Bar 0) rere 16, 19, 20, 23, 25

Gavula v. ARA Services, Inc., 756 A.2d 17

(Pa. Super. T0090) 2... ecens ME i Sar ee ae" 17

Green v. Green, 783 A.2d 788 (Pa. Super.

NE os bee cA ob Le teehee 20 n.4

Hepler v. Urban (“Hepler II”), 530 Pa. 375,

ee ee SD ce ke be deneeeewneres 16, 20, 25

Hepler v. Urban (“Hepler I”), 518 Pa. 482,

G44 A.2G O25 CIGGS) ... 0 cc cevecvenvne 16, 18, 20, 25

Idaho Department of Employment v. Smith,

le Gs RITE 8 hike £60 hee 15

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) .. 23

In re Trust Under Deed of Green, 572 Pa. 408,

GOS ie ee x 6 ccd ee envi vein ee 19 n.3, 20

In re Trust Under Deed of Green, 779 A.2d 1152

Ck, NE eee nikas aces eee k seers 19 &n.3

Johnson v. Chicago Board of Education,

AS BR ee ere re 15

Lawrence v. Chater, 516 U.S. 163 (1996) ........ 15

Mohasaco Corp. v. Silver, 447 U.S. 807 (1980) .... 16

Patterson v. McLean Credit Union, 491 U.S.

6 84S es Ve ee ibe eee eer 22, 23

-Vi-

Randall v. Sorrell, _ U.S. __, 126 S.Ct. 2479

Rs a ata Od oie Det ii te a de ea 22

Reeves v. Middletown Athletic Association,

866 A.2d 1115 (Pa. Super. 2004) ............... 17

Sidkoff, Pincus, et al. v. Pennsylvania Natl.

Mut. Cas. Ins. Co., 521 Pa. 462, 555 A.2d 1284

SE cies nave cae ad Uadee Rea eee ew eee: 18

Speight v. Burens, 371 Pa.Super. 478, 538

Po Ul re ae ree 18

Square D Co. v. Niagara Frontier Tariff

Bureau, Inc., 476 U.S. 409 (1986) .............. 23

Stilp v. Commonwealth, 588 Pa. 539, 905

i ge eo aes eed bee e ea 22

Vasquez v. Hillery, 474 U.S. 254 (1986) ......... 22

Vertical Resources, Inc. v. Bramlett, 837 A.2d

Se, Ns ED oo sche teces cxcceweesees 17

Welch vu. Texas Dept. of Highways and Public

Transportation, 483 U.S. 468 (1987) ............ 22

Yeaple v. Yeaple, 485 Pa. 399, 402 A.2d 1022

PE oo en eeu SPEa y eana tee aa et anes 17, 18, 25

CONSTITUTIONAL PROVISIONS,

STATUTES & RULES OF COURT

U.S. Const. Amend. XIV Section 1 .............. 1

el ae age ebaweaes 1,8n.1

ee A ea ee ere 1, 21

Fk | a ee ere a ere een 1

6 wwe ns 0-étan ene ceaaseew en 17

GRE. CE. SD ECMORED 0 cccciccevvssceses 1,8n.1

fy es eh a 1,8n.1

es cca an de bw enenen 2,8n.1

by ee BP Ce PPP eEeTererT eee 2,8n.1

43 Pa. CS. $G67MayD) ... 2... cece eee: -. 2,8n.1

OR ee Et Ea ee ea ae 2,8n.1

U.S. Supreme Court Rule 13.3 ................. 1

U.S. Supreme Court Rule 30................ 8 n.1

ek: Oe I 3 ooo vw eeaedoovasues 8n.1

ee ee ere 8n.l

ie i oi aieceiesssa ean 2,8n.1

ON I a ee ee ae 8n.1

Pel es SEED a. ds 6 0500 edb Kee deen 2,8n.1

Pes Mee, PE 66 Seve vicoessss 8 n.1, 81, 20, 25

a MR Eid 5 oleae wa wise a ae oe 17, 25

Oe FS 0 rr re re 8 n.i, 29, 25

Se i hl ee ie eo pellets ee baad Gos 9

eee Se SF. error 17, 21, 25

Pa. BR. Civ. FP. 236 ....... 2, 3, 7, 8, 10, 11, 17, 21, 25

Pa. R. Civ. P. 236,1994 Explanatory Comment ... 17

, Se Be Ee rn meee 18, 19, 20

ee ee Ss GP EOL 6 o's o ve eee becn eons 2,9

og OS a ere 2

210 Pa. Admin. Code § 65.12 ................. 2,9

210 Pa. Admin. Code § 65.22 ............. a, 44, 48

OTHER AUTHORITIES

THE FEDERALIST, No. 78, p. 490 (H. Lodge ed.

PO er ar ree 22

R. STERN, ET AL., SUPREME COURT PRACTICE (8th ed.

DE cic vied wha ehh ene eee eee eee ers ee ee 14, 15

Vinson, C.J., address before American Bar

Association September 7, 1949, quoted in R.

STERN & R. GRESSMAN, SUPREME COURT

PRACTICE 258 (Sth ed. 1978) ........cccccccess 14

PETITION FOR WRIT OF CERTIORARI

Canoe ...anufacturing Company, Inc., and M.

Robert Ullman respectfully petition for a writ of

certiorari to review the judgment of the Superior

Court of Pennsylvania in this case.

CITATIONS TO OFFICIAL AND

UNOFFICIAL REPORTS OF OPINIONS

No opinion, reported or unreported, has been

issued by a State appellate court in connection with

this matter. The unpublished opinion of the Court of

Common Pleas of Schuylkill County is reproduced in

the Appendix to this Petition at page 18a.

STATEMENT OF BASIS OF

JURISDICTION IN THIS COURT

The Order of the Supreme Court of

Pennsylvania denying Petitioners’ petition for

allowance of appeal was filed November 1, 2006.

Pursuant to Supreme Court Rule 13.3, the 90-day

period runs from that date and expires on January

30, 2007.

The Supreme Court of the United States is

vested with jurisdiction of this timely petition for writ

of certiorari pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES

AND REGULATIONS INVOLVED IN THE CASE

U.S. Const. Amend. XIV Section 1

Pa. Const. Art. V, § 9

Pa. Const. Art. V, § 10(c)

42 Pa. C.S. § 1722(a)(1)

42 Pa. C.S. § 5105(a)(1)

42 Pa. C.S. § 5501(a)

42 Pa. C.S. § 5502(a)-(b)

42 Pa. C.S. § 5571(a)-(b)

42 Pa. C.S. § 5572

Pa. R.A.P., Rule 105

Pa. R.A.P., Rule 108(a)(1), (b)

Pa. R.A.P., Rule 903(a)

Pa. R. Civ. P. No. 236

Superior Court Internal Operating Procedures, §§

65.7, 65.9, 65.12, 65.22, 210 Pa. Admin. Code §§ 65.7,

65.9. 65.12, 65.22

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STATEMENT OF THE CASE

A. INTRODUCTION

The “drop dead” date for filing court papers

necessary to preserve the right to appeal should not

be a “moveable feast” -- that is hardly a controversial

proposition. Yet, despite the best efforts of the

Pennsylvania Supreme Court to simplify the

“calculus” required to determine the limits of the

appeal period, and Petitioners’ conscientious efforts to

comply with that court’s dictates, the courts below

have demonstrated that any appearance of certainty

in Pennsylvania’s appellate practice is illusory

because an adverse litigant remains empowered to

“trump” a timely filing by proffering an ad hoc

alternative calculus designed to put the appellant out

of court. Petitioners herein have been victimized by

application of that signally unjust “double standard.”

The quashed Pennsylvania Superior Court

appeal was beyond reasonable doubt a timely appeal,

perfected on Febrvary 7, 2006 from an Order granting

summary judgment on which judgment was entered

and the requisite notice under a State procedural rule

(Pa. R. Civ. P. 236) noted on the docket on January 9,

2006. That appeal was nevertheless summarily

dismissed by the Deputy Prothonotary of the Superior

Court on April 12, 2006, in response to a Motion to

Quash which falsely asserted that the Order appealed

from was “really” an Order dated December 30,

2005 as to which “Rule 236 Notice was sent the

same day.” Although the docket entries flatly

contradict that assertion, Petitioners have been

stripped of their appellate rights and denied their

“day in court” after 12 years of litigation as a

consequence of a “blunder” that was never committed.

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B. FACTUAL BACKGROUND

The underlying action -- sounding in breach of

fiduciary duty and legal malpractice -- was brought by

Canoe Manufacturing Co., Inc. (“Canoe”), a

manufacturer of children’s jeans for K-Mart, Sears,

Montgomery Ward and other large customers, and

once the second-largest employer in Schuylkill

County, and M. Robert Ullman, Canoe’s President

and CEO (“Ullman”), against Canoe’s former

attorney, Joseph H. Jones, Esquire (“Jones”), and

Jones’s law firm, Williamson, Friedberg & Jones.

Jones was not only a prominent Pottsville

attorney with an active commercial practice, but was

also a Director of Meridian Bank and the Chair of

Meridian Bank’s Directors’ Audit Committee.

Jones represented Canoe in its effort to secure

new financing from Meridian Commercial Credit

Corp. (“Meridian”) to help Canoe, then Meridian’s

largest and most profitable customer, weather severe

cash flow problems in 1985 and 1986. In the course of

Jones’s negotiations to obtain new financing for

Canoe, Meridian demanded additional collateral; a

“commitment letter,” pursuant to which Meridian

agreed to furnish new financing in return for

additional collateral, was subsequently approved by

Meridian’s Loan Committee and issued on March 31,

1986. After being signed by the President of Meridian

and countersigned by Ullman on Canoe’s behalf, the

“commitment letter” was entrusted to Jones and

consigned to his files.

In the course of drawing up loan

documentation to secure additional collateral,

language was inserted which had the effect of

securing additional collateral for Meridian from

Canoe but removing Meridian’s obligation to

extend additional financing. Although Jones

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initially opposed the inclusion of such a provision on

the ground that it was prejudicial to Canoe and

inconsistent with the “commitment letter,” that

language was included in the final documents.

Accordingly, Canoe did furnish the additional

collateral but did not receive additional financing.

As a result, Canoe failed.

Canoe initially filed for Chapter 11 bankruptcy

protection in 1987; two years later, however, upon

petition of Meridian, the proceedings were converted

to a Chapter 7 liquidation.

~ On May 13, 1991, during a deposition of Jones

in another case, Canoe and Ullman discovered the

existence of the March 31, 1986 “commitment letter”

which had languished in Jones’s files for five years.

As a result of that discovery, this case was

commenced on May 5, 1993 by Canoe and Ullman

against Jones, Williamson, Friedberg & Jones and ’

Meridian in the Court of Common Pleas of Schuylkill

County.

The case proceeded to a period of extensive

discovery during which Canoe and Ul]Jman produced

five to ten cartons of documents, Jones and his firm

produced all discoverable portions of their files

relative to Canoe, and Meridian produced more than

20 file cabinets of documents. Over all, more than 40

depositions were taken. In 1999, the Court entered

an Order setting a discovery deadline of September

30, 1999.

On November 3, 1999, Jones and his firm

moved for summary judgment, asserting numerous

grounds. On December 22, 2000, the Honorable J.

Michael Stine granted summary judgment only on the

basis of the statute of limitations. Because this

ruling left open the Counterclaims another party,

Meridian, against of Canoe and Ullman, the Order

was not then appealable as of right. Once Canoe and

Uliman were able to resolve their differences with

Meridian, however, Canoe and Ullman filed a

praecipe for entry of judgment and appealed the

summary judgment award to the Superior Court on

April 30, 2003.

On February 16, 2004, the Superior Court

reversed the decision of the Court of Common Pleas

granting summary judgment to Jones and his firm

and expressly remanded this case to Schuylkill

County for trial, suggesting that the matter be

reassigned to a different Judge. The Superior Court

panel (Klein, Bender and Olszewski, JJ.) determined

in a memorandum decision that there were genuine

issues of material fact as to timing of Canoe and

Uliman’s knowledge and appreciation of the

significance of the March 31, 1986 “commitment

letter” which precluded summary judgment on the

applicability of the “discovery rule” to the statute of

limitations issue.

Jones and his firm then filed a Petition for

Allowance of Appeal in the Supreme Court of

Pennsylvania, which was denied on October 5, 2004.

The case was finally remanded to the Court of

Common Pleas for Schuylkill County, where it was

assigned to the Honorable C. Palmer Dolbin in place

of Judge Stine.

On May 16, 2005, Jones and his firm filed a

Second Motion for Summary Judgment raising

three entirely new issues: (1) that Canoe and

Ullman had no claim because the March 31, 1986

“commitment letter” was only an unenforceable

“agreement to agree”; (2) that the March 31, 1986

“commitment letter” is merged into the subsequent

loan restructuring final agreements of April 18, 1986,

and thus had no legal significance; and (3) that Canoe

and Ullman’s right to proceed with this action was

extinguished by the final decree issued in Canoe’s

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bankruptcy proceeding.

A motion to strike the Second Motion for

Summary Judgment filed by Canoe and Ullman was

immediately denied. After extensive briefing and

submission of exhibits, the matter was argued in July

of 2005. On December 30, 2095, Judge Dolbin

granted the Second Motion for Summary Judgment

on two of the three new grounds, namely, the

“agreement to agree” theory and bankruptcy defense.

The text of the December 30, 2005 Order stated:

AND NOW, this 30th day of December

2005, Defendants’ Second Motion for Summary

Judgment is granted. No genuine issue of fact

exists, and Defendants are entitled to

judgment as a matter of law.

BY THE COURT:

/S/ Dolbin, J.

CYRUS PALMER DOLBIN,

Judge

See Appendix (“App.”) at 18a. The above Order, on its

face, neither enters judgment in favor of Respondents

nor directs entry of judgment by the Prothonotary.

_ The docket for December 30, 2005 reflects that

Judge Dolbin had copies of his Opinion and Order

date-stamped and mailed to the parties. App. 10a. No

Rule 236 Notice was sent nor was a notation made on

the docket that Rule 236 Notice was sent. Neither

was judgment entered on the docket on December 30,

2005.

Counsel for Jones and his firm filed a praecipe

for entry of judgment on Judge Dolbin’s Order on

January 9, 2006. App. 19a. In response to that

praecipe, the Protnonotary, on January 9, 2006,

-8-

entered judgment on the December 30, 2005 Order

and sent a Notice pursuant to Pa. R. Civ. P. 236 to

counsel. App. 10a.

On January 18, 2006, Canoe and Ullman

moved for reconsideration asserting that the Court’s

ruling on “agreement to agree” constituted mistake of

law, that it wrongly applied the case law of

Pennsylvania and wrongfully invaded the jury’s

province, and that it incorrectly analyzed this matter

on the basis of contract law when the causes of action

asserted herein were tort causes of-action for

professional negligence/legal malpractice and breach

of fiduciary duty. Further, Plaintiffs/Canoe asserted

mistake of law in that the Court misinterpreted the

Bankruptcy Decree and mistook causes of action

“abandoned” in the bankruptcy proceeding. Equally,

Plaintiffs/Canoe asserted mistake of law in that the

Canoe Bankruptcy Decree cannot dispose of Mr.

Uliman’s causes of action herein since he was not a

party to the Canoe bankruptcy proceeding.

On February 6, 2006, Judge Dolbin denied the

Motion for Reconsideration. App. 10a. On February

7, 2006, 29 days after Rule 236 Notice was noted on

the docket, Canoe and Ullman filed their Notice of

Appeal in the Court of Common Pleas for Schuylkill

County’. App. 10a, 23a.

Once the appeal was docketed in the Superior

' The right of appeal is guaranteed by Pa. Const. Art. V, § 9, and

governed by a combination of various section of the Judicial Code,

42 Pa. C.S. §§ 1722(a)(1), 5105(a)(1), 5501(a), 5502(a)-(b), 557 1(a)-

(b), 5572, and the Supreme Court-promulgated Pennsylvania

Rules of Appellate Procedure, including Pa. R.A.P., Rules 105,

108(aX(1), (b) and 903(a). The mandatory 30-day time limit for

perfecting an appeal appears in both the statutory provisions and

the related rules. Unlike Fed. R. App. P. 4(a)(5) and 4(b)(4), and

Supreme Court Rule 30, the Pennsylvania Rules of Appellate

Procedure do not permit extensions of the time limit for filing

appeals in civil or criminal cases. Pa. R.A.P. 105(b).

Court, Petitioners were required to complete a “Civil

Docketing Statement” (App. 24a) the purpose of

which is to facilitate determination of timeliness,

finality and other prerequisites to appellate court

jurisdiction in the Pennsylvania’s Unified Judicial

System. Petitioners accurately reported on this form

that the date of the judgment appealed from was

January 9, 2006, and that the appeal was filed on

February 7, 2006, one day prior to the expiration 30-

day period within which an appeal must be perfected.

The Superior Court maintains a full-time

Central Legal Staff (“Staff”) of licensed Pennsylvania

attorneys for purposes including “screening cases.”

Superior Court Internal Operating Procedure (“IOP”)

§ 65.7, 210 Pa. Admin. Code § 65.7. Among the

responsibilities of the Staff is “the screening of

docketing statements filed pursuant to Pa.R.A.P.

3517”:

These statements are to be initially screened

to determine if the appeal is jurisdictionally or

procedurally defective. No appeal shall be

subject to being quashed on the basis of the

docketing statement review alone; rather, if a

defect is apparent, a letter shall be addressed

to counsel to verify same. Following

notification to counsel, the appeal is subject to

being quashed by the assigned monthly

motions judge.

IOP § 65.12, 210 Pa. Admin. Code § 65.12.

It should be mentioned that the Staff “flags”

premature as well as untimely appeals, and will

frequently direct the prospective appellant to take

further action, such as a request for formal entry of

final judgment in cases where the Order of which

review is sought is “final” in legal effect but not in

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form, such as an Order which grants definitive relief

but does not enter or direct the entry of judgment on

the docket. Such directives from the Staff come with

stringent time limits and usually require a trip to the

courthouse to obtain a certified and sealed copy of

final judgment for presentation to the Superior Court.

No letter issued from the Staff to Petitioners

in connection with their February 7,2006 appeal,

since Respondents had arranged for entry of final

judgment on the Order granting summary judgment

on January 9, 2006.

On February 24, 2006, Counsel for Jones and

his firm filed an unverified Motion to Quash Appeal

which asserted that the Order appealed from was

“really” Judge Dolbin’s Order of December 30, 2005.

App. 39a. Jones’s lawyers represented to the

Superior Court that Judge Dolbin’s December 30,

2005 Order “entered judgment in favor of moving

defendants and against plaintiffs.” App. 41a.

Jones’s lawyers also represented to the Superior

Court that “Rule 236 Notice was sent the same

day[,]” i.e., December 30, 2005. Jd. Both of those

representations are belied by the docket entries and

the record.

In paragraph 2 of the Motion to Quash, Jones’s

lawyers represented to the Superior Court that the

appeal had been taken from an Order of the Court of

Common Pleas of Schuylkill County dated December

30, 2005, App. 39a-40a, when in fact the appeal was

taken from the judgment entered on the docket in

that court on January 9, 2006, as unambiguously

reflected in the Notice of Appeal filed February 7,

2006, 29 days after judgment was entered and Rule

236 Notice sent. In paragraph 9, Jones’s lawyers

represented to the Superior Court that the Court of

Common Pleas of Schuylkill County “entered

judgment in favor of moving defendants and against

plaintiffs” on December 30, 2005. App. 41a. Neither

the Opinion of the Honorable Cyrus Palmer Dolbin

, dated December 30, 2005 nor the accompanying

Order purported to enter or directs entry of judgment

in favor of Jones and his firm.

Most glaring among the misrepresentations

made in the unverified Motion to Quash, however, is

paragraph 10, in which Jones’s lawyers assert that

“Rule 236 Notice was sent” on December 30, 2005.

App. 41a. No Rule 236 Notice was sent on December

30, 2005, nor was a notation made on the docket on

that date that Rule 236 Notice was sent. Date-

stamped copies of the lower court’s decision and

Order were, indeed, mailed to the parties, as the

docket indicates. That fact is entirely irrelevant to

the purely technical issues of timeliness on which the

Motion to Quash purported to be based. What is

significant is that no Rule 236 Notice

accompanied that mailing and no docket entry

even suggests that one did.

Canoe and Ullman filed an Answer to the

Motion to Quash on March 13, 2006, App. 47a, to

which Jones and his firm filed a Reply on March 23,

2006. App. 64a. On April 12, 2006 the Superior

Court Deputy Prothonotary entered a Per Curiam

Order quashing the appeal. App. 77a.

Pursuant to Superior Court IOP § 65.22,

Motions to Quash or Dismiss Appeals “shall be

subject to review and disposition by a panel of three

commissioned judges.” 210 Pa. Admin. Code § 65.22.

The actual decision-making mechanism again invokes

the assistance of the Central Legal Staff:

B. After a motion subject to this Rule has been

filed by the Prothonotary's office, the

Prothonotary shall forward the motion to

Central Legal Staff which shall prepare and

-}] 2.

circulate to the motions panel a legal

memorandum and recommendation. Votes

thereon shall be due three weeks from the date

on which the motion and accompanying

document are sent by Central Legal Staff.

Votes on cases which have been identified as

family law fast track cases shall be due two

weeks from the date on which the motion and

accompanying documents are sent by Central

Legal Staff.

C. If, in reviewing motions to be referred

to a motions panel, Central Legal Staff

determines that the motion is patently

defective or the appeal is clearly

defective or can be disposed of based

upon established case law, the motion

may be presented to the assigned motions

judge.

210 Pa. Admin. Code § 65.22(B)-(C)(emphasis

supplied).

It cannot be determined from the record

whether a three-judge panel or a single judge direeted

issuance of the Order quashing Petitioners’ appeal.

Assuming Respondents’ proffered recomputation of

the time for filing an appeal was somehow accepted

as “correct,” the decision may well have been made by

one judge relying on the reasoning of one Staff

attorney.

On April 26, 2006, Canoe and Ullman filed an

Application for Reargument Before a Court En Banc

of Order Improvidently Quashing Appeal. App. 78a.

The Superior Court Deputy Prothonotary, deeming

the filing to be an “Application for Reconsideration,“

denied the Application by Per Curiam Order on May

5, 2006, App. 107a, before Jones’s Answer (App. 95a)

-13-

was received.

Petitioners’ timely Petition for Allowance of

Appeal (App. 108a) to the Supreme Court of

Pennsylvania was denied on November 1, 2006

without opinion or explanation. App. 148a.

-14-

REASONS FOR GRANTING THE WRIT

Because the Question Presented by this

petition for writ of certiorari boldly seeks a “GVR”

Order to remedy what is characterized as a patent

violation of the petitioners’ constitutional rights, it

must be emphasized at the outset that Petitioners

appreciate the unusual tenor of their petition and

have attempted to demonstrate both the absolute

necessity and appropriateness of the requested relief

and the palpable nature of the constitutional

violation, as cogently and rapidly as they are able,

within the “four corners” of their petition.

There can be no more dispute today than there

was over half a century ago that the Supreme Court

of the United States “is not, and never has been,

primarily concerned with the correction of errors in

lower court decisions.” Boag v. MacDougall, 454 U.S.

364, 368 (1982)(Rehnquist, J., dissenting), quoting

Vinson, C.J., address before American Bar

Association September 7, 1949, quoted in R. STERN &

R. GRESSMAN, SUPREME COURT PRACTICE 258 (5th ed.

1978). Nevertheless, a leading commentator has

stated,-albeit with significant caveats, that “[t]here

appears to be agreement that summary disposition

[by the Supreme Court] is appropriate to correct

clearly erroneous decisions of lower courts,” R.

STERN, ET AL., SUPREME COURT PRACTICE (8th ed.

2002)(“STERN & GRESSMAN”) at 321, and that “[t}he

[Supreme] Court has shown no reluctance to reverse

summarily a state court decision found to be clearly

erroneous|[.]” STERN & GRESSMAN at 323.

"Error correction . . . is outside the

mainstream of the Court’s functions|,)” and “is not

among the ‘compelling reasons’ (Rule 10) that govern

the grant of certiorari.” STERN & GRESSMAN at 322.

Indeed, the Court is “much too busy to correct every

error that is called to [its] attention in the thousands

of certiorari petitions that are filed each year.” Idaho

Department of Employment v. Smith, 434 U.S. 100,

104 (1977)(Stevens, J., dissenting). “This,

justification for granting certiorari merely to correct a

clearly erroneous decision must be found elsewhere,

such as in the provisions of 28 U.S.C. § 2106.” STERN

& GRESSMAN, id. “Under that statute, error

correction becomes an exercise of the Court’s

statutory power to set aside or reverse, ‘as may be

just under the circumstances,’ any judgment of a

court lawfully brought before it.” STERN &

GRESSMAN, id., citing Johnson v. Chicago Board of

Education, 457 U.S. 52, 54 (1982)(Rehnquist, J.,

dissenting). That statutory power includes the power

to “remand the cause and direct the entry of such

appropriate judgment, decree or order, or require

... further proceedings[.]” 28 U.S.C. § 2106.

To qualify for such treatment, a “clearly

erroneous decision” should involve “an error of

greater magnitude than the mere technical, harmless

or parochial error.” STERN & GRESSMAN at 322.

“When the error is of constitutional dimension,

summary reversal ‘should be reserved for palpably

clear cases of constitutional error.” STERN &

GRESSMAN, id. at n.100, quoting Eaton v. Tulsa, 415

U.S. 697, 707 (1974)(Rehnquist, J., dissenting).

Petitioners respectfully submit that the gross

violation of their rights to due process and equal

protection demonstrated in their petition for writ of

certiorari is just such palpably clear error of

constitutional dimension which, if this Court denies

review, will go uncorrected, leaving in place an

arbitrary and ill-considered state court decision that

worked an extreme injustice.

In Lawrence v. Chater, 516 U.S. 163 (1996),

this Court expanded the practice of granting

-16-

certiorari, vacating and remanding (a “GVR” Order)

in appropriate cases as a means to “conserve[ ] the

scarce resources of this Court that might otherwise be

expended on plenary consideration [and to] assist| ]

the court below by flagging a particular issue that it

does not appear to have fully considered... .” Id. at

167. This case clearly presents a situation in which

there is a compelling need to mandate “fuller”

consideration below. Although Petitioners do not

contend that intervening factual or legal

developments render the lower court’s decision

infirm, but rather that the court below simply failed

to follow clear published rules already definitively

interpreted consider by the State’s highest court, the

rationale of a GVR Order is nevertheless well suited

to the present case because a GVR Order will prompt

the court below to give an appropriate level

consideration on remand to the propriety of a judicial

action extremely unlikely to survive such scrutiny.

All Petitioners request is an “evenhanded

administration of the law” involving “strict adherence

to the procedural requirements specified by [the

state’s rulemaking authority].” Mohasaco Corp. v.

Silver, 447 U.S. 807, 826 (1980). What they have

received from their State’s judicial system is the exact

opposite.

The aberrant decision of the Superior Court in

this case on the fundamental question of the proper

manner in which to compute the time period for

taking an appeal in a civil case is directly contrary to

the decisions of the Pennsylvania Supreme Court, as

well as the decisions of prior panels of the Superior

Court following the state Supreme Court’s binding

precedent. In granting Respondents’ Motion to

Quash, the Superior Court reached a result directly

contrary to the decisions of the state Supreme Court

in Frazier v. City of Philadelphia, Hepler v. Urban

-17-

and Yeaple v. Yeaple, previously followed by the

Superior Court in Gavula v. ARA Services, Inc., 756

A.2d 17 (Pa. Super. 2000), Cardwell v. Chrysler

Financial Corp., 804 A.2d 18 (Pa. Super. 2002),

Vertical Resources, Inc. v. Bramlett, 837 A.2d 1193

(Pa. Super. 2003), and Reeves v. Middletown Athletic

Association, 866 A.2d 1115 (Pa. Super. 2004), and

completely disregarded the interplay between Rule

236 and 227.4(2) of the Rules of Civil Procedure and

Rules 108(b), 301(a) and 903(a) of the Rules of

Appellate Procedure.

Pa. R. Civ. P. 236, entitled “Notice by

Prothonotary of Entry of Order or Judgment,”

provides in pertinent part:

(a) The prothonotary shall immediately

give written notice of the entry of

(2) any other order or judgment to each

party’s attorney of record or, if unrepresented,

to each party. The notice shall include a

copy of the order or judgment.

(Emphasis supplied.) As the emphasized language

makes clear, Rules 236 requires a separate written

notice -- the order or judgment alone does not

constitute “Rule 236 Notice.” Indeed, prior to it

amendment in 1994, Rule 236 “required notice of an

order but not the mailing of a copy of the order

itself].J)” Pa. R. Civ. P. 236, 1994 Explanatory

Comment. The Rule now requires both.

The issue was controlled by the Pennsylvania

Supreme Court’s decision in Frazier v. City of

Philadelphia, which clarified once and for all the

method for determining timeliness of an appeal, and

for that reason must be quoted at length:

Rule of Appellate Procedure 301(a)

provides that "[n]o order of a court shall be

-18-

appealable until it has been entered upon the

appropriate docket in the lower court." See

generally Sidkoff, Pincus, et al. v.

Pennsylvania Nat'l Mut. Cas. Ins. Co., 521 Pa.

462, 468, 555 A.2d 1284, 1287 (1989). Further,

Rule of Appellate Procedure 108(b) designates

the date of entry of an order, for purposes of

appeal, as follows:

(b) Civil orders. The date of

entry of an order in a matter subject to

the Pennsylvania Rules of Civil

Procedure shall be the day on which the

clerk makes the notation in the docket

that notice of entry of the order has

been given as required by Pa. R. Civ. P.

236(b).

Pa. R.A.P. 108(b). As previously noted, Rule of

Civil Procedure 236(b) describes the

prothonotary's obligation to “note in the docket

the giving of the notice and, when a judgment

by confession is entered, the mailing of the

required notice and documents.”

Thus, pursuant to the express terms of

the rules, an order is not appealable until it is

entered on the docket with the required

notation that appropriate notice has been

given. See Yeaple v. Yeaple, 485 Pa. 399, 403,

402 A.2d 1022, 1024 (1979); see also Speight v.

Burens, 371 Pa.Super. 478, 481 n. 3, 538 A.2d

542, 543 n. 3 (1988). Cf. Hepler v. Urban, 518

Pa. 482, 484-85, 544 A.2d 922, 923

(1988)(finding that, where there is no

indication in the docket that notice has been

provided in accordance with Rule 236, an order

granting summary judgment was not final).

That the parties may have received notice

of the order does not alter the formal date

-19-

of its entry and the associated

commencement of the period allowed for

appeal for purposes of the rules. The

procedural! requirements reflected in the rules

serve to promote clarity, certainty and ease of

determination, so that an appellate court will

immediately know whether an appeal was

perfected in a timely manner, thus eliminating

the need for a case-by-case factual

determination. See generally Commonwealth v.

Dorman, 272 Pa.Super. 149, 153-54, 414 A.2d

713, 716 (1979).

Frazier v. City of Philadelphia, 557 Pa. at 621, 735

A.2d at 115 (emphasis supplied).

In Frazier, although the appellant received

actual notice by mail of an adverse judgment entered

on the docket on April 8, 1997, the Pennsylvania

Supreme Court unanimously held that the 30-day

appeal period under Pa. R.A.P. 903(a) was not

triggered until a notation was entered on the docket

pursuant to Pa. R. Civ. P. 236(b) some six months

later that notice of that judgment had been given to

the parties, and that an appeal taken on November 10

, 1997, within 30 days of that belated notation was

therefore timely.

Respondents relied heavily below on the

Superior Court’s opinion in Jn re Trust Under Deed of

Green, 779 A.2d 1152 (Pa. Super. 2001)’, in which,

according to Respondents, the Pennsylvania Supreme

Court denied allocatur (“appeal denied, 805 A.2d 524

3 In that case the Superior Court acknowledged that the

prothonotary failed to make the appropriate docket entry giving

notice to the parties pursuant to Rule 236 but deemed that

jurisdictional defect waived. In re Trust Under Deed of Green, 779

A.2d 1152, 1157 n.5 (Pa. Super. 2001), reversed and remanded,

572 Pa. 408, 816 A.2d 224 (2003).

-20-

(Pa. 2002)”)* citing that decision as controlling

authority three times in their Motion to Quash and

once in their Reply to Petitioners’ Answer. In reality,

the Pennsylvania Supreme Court not only granted

allocatur in In re Trust Deed of Green but summarily

reversed, citing Frazier v. City of Philadelphia,

controlling authority Respondents chose to ignore. In

re Trust Under Deed of Green, 572 Pa. 408, 816 A.2d

224 (2003).

It is also ironic that irregularities in

compliance with Rule 236 by the Court of Common

Pleas of Schuylkill County, the very court from which

the appeal in this case was taken, have twice been

the subject of prior scrutiny by the Pennsylvania

Supreme Court, first in Hepler v. Urban, 518 Pa. 482,

544 A.2d 922 (1988), a decision cited by the Frazier

Court, and again in Hepler v. Urban (“Hepler II”),

530 Pa. 375, 609 A.2d 152 (1992), in which the state

Supreme Court expressly held that the requirement

under Pa. R.A.P. 108(b) that “the date of the entry of

an order . . . shall be the day on which the clerk

makes the notation in the docket that notice of

entry of the judgment has been given as required by

Pa. R. Civ. P. 236(b)” is both literal and mandatory.

Hepler v. Urban, 530 Pa. at 380, 609 A.2d at 154

(emphasis supplied).

Judge Dolbin’s December 30, 2005 Order on its

face “grants .. . relief but does not itself enter

judgment or order the prothonotary to do so.” See Pa.

R. Civ. P. 227.4(2). Indeed, the docket for December

30, 2005 reflects only that Judge Dolbin had copies of

his Opinion and Order date-stamped and mailed to

* Respondents erroneously cite to the Pennsylvania Supreme

Court’s denial of allocatur in Green v. Green, 783 A.2d 788 (Pa.

Super. 2001), allocatur denied, 569 Pa. 707, 805 A.2d 824

(2002)(Nos. 1051-1053 MAL 2001), which is a different case.

-21-

the parties. No Rule 236 Notice was sent nor was

a notation made on the docket that Rule 236

Notice was sent. Neither was judgment entered

on the docket on December 30, 2005.

Pa. R. Civ. P. 227.4(2) expressly provides for

entry of judgment upon praecipe of a party where an

Order “grants .. . relief but does not itself enter

judgment or order the prothonotary to do so.” Given

the wording of Judge Dolbin’s Order, coupled with the

absence of entry of judgment or a Rule 236 Notice, a

praecipe was clearly necessary to effectuate the entry

of judgment on the Order. Counsel for Jones and his

firm recognized the necessity of this additional

procedural step and filed a praecipe for entry of

judgment on January 9, 2006. Indeed, it was in

direct response to that praecipe that the

Prothonotary, on January 9, 2006, entered

judgment on the December 30, 2005 Order and

sent a Notice pursuant to Pa. R. Civ. P. 236.

This was the first and only Rule 236 Notice ever

sent in connection with the award of summary

judgment.

As evidenced by the January 9, 2006 docket

entry “JUDGMENT ENTERED-NOTICES SENT,”

the Prothonotary of Schuylkill County now

scrupulously complies with the dictates of Rule 236.

In that context, it is clear that the prior docket

notation “OPINION AND ORDER OF COURT-

COPIES MAILED” was not, nor was it intended to be,

Rule 236 Notice.

Aside from departing from the express

requirements of published procedural rules, the

Superior Court’s ruling, by failing to follow binding

precedent of the state Supreme Court, the body

charged pursuant to the state Constitution with

exclusive procedural rulemaking powers, Pa. Const.

Art. V, section 10(c), explicating those same rules,

-29.-

violated the principle of stare decisis. Indeed the

Supreme Court of Pennsylvania last year quoted this

Court for the proposition that “stare decisis promotes

the evenhanded, predictable, and consistent

development of legal principles, fosters reliance on

judicial decisions, and contributes to the actual and

perceived integrity of the judicial process.” Stilp v.

Commonwealth, 588 Pa. 539, , 905 A.2d 918, 1

(2006), quoting Randall v. Sorrell, _ U.S. __, 126

S.Ct. 2479, 2489 (2006).

This Court’s discussion of stare decisis in

Patterson v. McLean Credit Union, 491 U.S. 164

(1989), remains instructive:

The Court has said often and with great

emphasis that "the doctrine of stare decisis is

of fundamental importance to the rule of law."

Welch v. Texas Dept. of Highways and Public

Transportation, 483 U.S. 468, 494 (1987).

Although we have cautioned that "stare decisis

is a principle of policy and not a mechanical

formula of adherence to the latest decision,"

Boys Markets, Inc. v. Retail Clerks, 398 U.S.

235, 241 (1970), it is indisputable that stare

decisis is a basic self-governing principle

within the Judicial Branch, which is

entrusted with the sensitive and difficult

task of fashioning and preserving a

jurisprudential system that is not based

upon "an arbitrary discretion." The

Federalist, No. 78, p. 490 (H. Lodge ed. 1888)

(A. Hamilton). See also Vasquez vu. Hillery, 474

U.S. 254, 265 (1986) (stare decisis ensures that

"the law will not merely change erratically"

and "permits society to presume that bedrock

principles are founded in the law rather than

in the proclivities of individuals").

-23-

Patterson v. McLean Credit Union, 491 U.S. at 172

(emphasis supplied). This Court further noted in

Patterson that “any departure from the doctrine of

stare decisis demands special justification.” Jd.,

quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984).

The Patterson Court further emphasized that

“(clonsiderations of stare decisis have special force in

the area of statutory interpretation, for here, unlike

in the context of constitutional interpretation, the

legislative power is implicated, and Congress remains

free to alter what we have done.” Patterson, 491 U.S.

at 172-173, citing Square D Co. v. Niagara Frontier

Tariff Bureau, Inc., 476 U.S. 409, 424 (1986); Illinois

Brick Co. v. Illinois, 431 U.S. 720, 736 (1977).

Because formulating rules of judicial

procedure, in some States a matter for the

Legislature, is a subject allocated by the

Pennsylvania Constitution to the Supreme Court and

its various Rules Committees, considerations of stare

decisis are doubly important when examining the

state Supreme Court’s precedential interpretations of

its own procedural rules. See Commonwealth v.

White, 910 A.2d 648, 866 (Pa. 2006)(Cappy, C.J.,

dissenting, joined by Baer, J.)(dissent from decision

overruling recent decision interpreting Rule of

Appellate Procedure governing interlocutory appeals

as of right). Calls for amendments to the State’s

procedural rules are channeled through an orderly

rulemaking process, not undertaken on an ad hoc

basis in the guise of motion practice.

The Superior Court advanced no “special

justification” -- indeed no justification at all -- for

departing from the Pennsylvania Supreme Court’s

decision in Frazier v. City of Philadelphia in this case.

The Respondent’s arguments, properly viewed, were

at best veiled criticisms of the pertinent rules as

-24-

written and as interpreted by the Pennsylvania

Supreme Court. The Superior Court had no authority

to entertain such arguments, let alone to abrogate

rules it had the duty to enforce and to overrule

precedent it had the duty to follow. Petitioners’

timely appeal was nevertheless quashed as

“untimely” on motion of Respondents, an action the

Superior Court did have the power to take. Once

issued, that court’s arbitrary order became, by its

very nature, essentially unreviewable.

-25-

CONCLUSION

The petition for writ of certiorari should be

granted, the Order of the Superior Court of

Pennsylvania quashing Petitioners’ appeal vacated,

and the matter remanded to the Superior Court of

Pennsylvania for reconsideration on the merits of

Respondents’ motion to quash in light of Frazier v.

City of Philadelphia, Hepler v. Urban and Yeaple v.

Yeaple, Rule 236 and 227.4(2) of the Pennsylvania

Rules of Civil Procedure and Rules 108(b), 301(a) and

903(a) of the Pennsylvania Rules of Appellate

Procedure.

Respectfully submitted,

/S/ Joseph R. Viola

Joseph R. Viola, Esquire

Atty. Reg. No. 35362

1900 Spruce Street

Philadelphia, PA 19103

(215) 893-0700

Counsel of Record for

Petitioners Canoe Manufacturing

Co., Inc., and M. Robert Ullman

DATED: January 26, 2007

U.S. Const. Amend. XIV, § 1

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.

Pa. Const. Art. 5, § 9

§ 9. Right of appeal

There shall be a right of appeal in all cases to a court

of record from a court not of record; and there shall

also be a right of appeal from a court of record or from

an administrative agency to a court of record or to an

appellate court, the selection of such court to be as

provided by law; and there shall be such other rights

of appeal as may be provided by law.

Pa. Const. Art. 5, § 10(c)

§ 10. Judicial administration

* * * *

prescribe general rules governing practice, procedure

and the conduct of all courts, justices of the peace and

all officers serving process or enforcing orders,

judgments or decrees of any court or justice of the

peace, including the power to provide for assignment

and reassignment of classes of actions or classes of

appeals among the several courts as the needs of

justice shall require, and for admission to the bar and

to practice law, and the administration of all courts

and supervision of all officers of the judicial branch, if

such rules are consistent with this Constitution and

neither abridge, enlarge nor modify the substantive

rights of any litigant, nor affect the right of the

General Assembly to determine the jurisdiction of any

court or justice of the peace, nor suspend nor alter

any statute of limitation or repose. All laws shall be

suspended to the extent that they are inconsistent

with rules prescribed under these provisions. ... .

42 Pa.C.S. § 1722(a)(1)

§ 1722. Adoption of administrative and procedural

rules

(a) GENERAL RULE.-- The governing authority shall

have the power to prescribe and modify general rules

governing:(1) Practice, procedure and the conduct of

all courts, magisterial district judges and all officers

serving process or enforcing orders of any court or

magisterial district judge and for admission to the bar

and to practice law, and the administration of all

courts and the supervision of all officers of the judicial

branch, if such rules are consistent with the

Constitution of Pennsylvania and neither abridge,

enlarge nor modify the substantive rights of any

litigant, nor affect the right of the General Assembly

to determine the jurisdiction of any court or

magisterial district judge, nor suspend nor alter any

statute of limitation or repose. All statutes shall be

suspended to the extent that they are inconsistent

with rules prescribed under this paragraph.

Section 5105(a)(1) of the Judicial Code, 42 Pa. C.S. §

5105(a)(1)

§ 5105. Right to appellate review

(a) General rule.--There is a right of appeal under

this subsection from the final order (including an

order defined as a final order by general rule) of

every:

(1) Court or magisterial district judge of this

Commonwealth to the court having jurisdiction of

such appeals.

42 Pa.C.S. § 5501(a)

§ 5501. Scope of chapter

(a) GENERAL RULE.-- An action, proceeding or

appeal must be commenced within the time specified

in or pursuant to this chapter unless, in the case of a

civil action or proceeding, a different time is provided

by this title or another statute or a shorter time

which is not manifestly unreasonable is prescribed by

written agreement.

42 Pa. C.S. § 5502

§ 5502. Method of computing periods of limitation

generally

(a) GENERAL RULE.-- The time within which a

matter must be commenced under this chapter shall

be computed, except as otherwise provided by

subsection (b) or by any other provision of this

chapter, from the time the cause of action accrued,

the criminal offense was committed or the right of

appeal arose.

(b) IMPLEMENTING COURT RULES.-- Subsection

(a) may be made more specifically applicable to

particular classes of matters by general rules defining

the acts, omissions or events from which the

limitation shall be computed. Rules adopted pursuant

to this section shall take effect only in the manner

provided by section 503(b) (relating to procedures).

42 Pa. C.S. § 5571(a)-(b)

§ 5571. Appeals generally

(a) GENERAL RULE.-- The time for filing an appeal,

a petition for allowance of appeal, a petition for

permission to appeal or a petition for review of a

quasi-judicial order, in the Supreme Court, the

Superior Court or the Commonwealth Court shall be

governed by general rules. No other provision of this

subchapter shall be applicable to matters subject to

this subsection:

(b) OTHER COURTS.-- Except as otherwise provided

in subsections (a) and (c), an appeal from a tribunal

or other government unit to a court or from a court to

an appellate court must be commenced within 30

days after the entry of the order from which the

appeal is taken, in the case of an interlocutory or final

order.

42 Pa. C.S. § 5572

§ 5572. Time of entry of order

The date of service of an order of a government unit,

which shall be the date of mailing if service is by

mail, shall be deemed to be the date of entry of the

order for the purposes of this subchapter. The date of

entry of an order of a court or magisterial district

judge may be specified by general rules.

Pa. R.A.P. 105

Rule 105. Waiver and Modification of Rules

(a) Liberal construction and modification of rules.

These rules shall be liberally construed to secure the

just, speedy and inexpensive determination of every

matter to which they are applicable. In the interest of

expediting decision, or for other good cause shown, an

appellate court may, except as otherwise provided in

Subdivision (b) of this rule, disregard the

requirements or provisions of any of these rules in a

particular case on application of a party or on its own

motion and may order proceedings in accordance with

its direction.

(b) Enlargement of time. An appellate court for good

cause shown may upon application enlarge the time

prescribed by these rules or by its order for doing any

act, or may permit an act to be done after the

expiration of such time, but the court may not enlarge

the time for filing a notice of appeal, a petition for

allowance of appeal, a petition for permission to

appeal, or a petition for review.

Pa.R.A.P., Rule 108(a)(1), (b)

Rule 108. Date of Entry of Orders

(a) General rule. (1) Except as otherwise prescribed in

this rule, in computing any period of time under these

rules involving the date of entry of an order by a court .

or other government unit, the day of entry shall be

the day the clerk of the court or the office of the

government unit mails or delivers copies of the order

to the parties, or if such delivery is not otherwise

required by law, the day the clerk or office of the

government unit makes such copies public. The day of

entry of an order may be the day of its adoption by

the court or other government unit, or any

subsequent day, as required by the actual

circumstances.

* * BS *

(b) Civil orders. The date of entry of an order in a

matter subject to the Pennsylvania Rules of Civil

Procedure shall be the day on which the clerk makes

the notation in the docket that notice of entry of the

order has been given as required by Pa.R.Civ.P.

236(b).

(a) and (b) of this rule, an order subject to Rule 301(e)

(emergency appeals) shall be deemed entered for the

purposes of these rules when the party intending to

appeal has complied with such rule to the extent

practicable under the circumstances.

Pa. R.A.P., Rule 903(a)

Rule 903. Time for Appeal

(a) General rule. Except as otherwise prescribed by

this rule, the notice of appeal required by Rule 902

(manner of taking appeal) shall be filed within 30

days after the entry of the order from which the

appeal is taken.

Pa. R.Civ.P. No. 236

Rule 236. Notice by Prothonotary of Entry of Order or

Judgment

(a) The prothonotary shall immediately give written

notice of the entry of

(1) a judgment entered by confession to the defendant

by ordinary mail at the address stated in the

certificate of residence filed by the plaintiff together

with a copy of all documents filed with the

prothonotary in support of the confession of

judgment. The plaintiff shall provide the

prothonotary with the required notice and documents

for mailing and a properly stamped and addressed

envelope; and

* * * *

(2) any other order or judgment to each party's

attorney of record or, if unrepresented, to each party.

The notice shall include a copy of the order or

judgment.

* * * *

(b) The prothonotary shall note in the docket the

giving of the notice and, when a judgment by

confession is entered, the mailing of the required

notice and documents.

confession is entered to mail the required documents,

or both, shall not affect the lien of the judgment.

(d) The prothonotary may give the notice required by

subdivision (a) or notice of other matters by facsimile

transmission or other electronic means if the party to

whom the notice is to be given or the party's attorney

has filed a written request for such method of

notification or has included a facsimile or other

electronic address on a prior legal paper filed in the

action.

Superior Court Internal Operating Procedures, § 65.7,

210 Pa. Admin. Code § 65.7

§ 65.7. Central Legal Staff

Central Legal Staff is an office of the Court created

for the purpose of assisting the Court in reviewing

and processing motions, preparing memos for the

Court as directed, screening cases, certifying cases to

advise the Court of apparent conflicts, preparing a

newsletter to inform the Court of recent Supreme and

Superior Court decisions, and accepting such other

responsibilities as may be assigned by the Court or

the President Judge.

Superior Court Internal Operating Procedures, § 65.8,

210 Pa. Admin. Code § 65.9

§ 65.8. Composition of Staff

A. The Central Legal Staff is comprised of members

of the Bar of the Commonwealth of Pennsylvania and

serves the interests of the Court as a whole and

assists the Judges in procedural and substantive

matters under the direction of the President Judge.

B. The staff is supervised by the Chief Staff Attorney.

The Chief Staff Attorney shall prepare and make

available to the members of the Court written

Internal Operating Procedures for all aspects of

Central Legal Staff's operations.

Superior Court Internal Operating Procedures, $

65.12, 210 Pa. Admin. Code § 65.12

§ 65.12. Initial Review of Docketing Statements

Staff is responsible for the screening of docketing

statements filed pursuant to Pa.R.A.P. 3517. These

statements are to be initially screened to determine if

the appeal is jurisdictionally or procedurally

defective. No appeal shall be subject to being quashed

on the basis of the docketing statement review alone;

rather, if a defect is apparent, a letter shall be

addressed to counsel to verify same. Following

notification to counsel, the appeal is subject to being

quashed by the assigned monthly motions judge.

Superior Court Internal Operating Procedures, §

65.22, 210 Pa. Admin. Code § 65.22

§ 65.22. Motions Review Subject to Motions Panel

Disposition

A. Motions to Quash or Dismiss Appeals, Petitions for

Permission to Appeal pursuant to Pa.R.A.P. 312,

1301-1323 and 42 Pa.C.S. 702(b), and Petitions for

Review pursuant to Pa.R.A.P. 1501 et seq. shall be

subject to review and disposition by a panel of three

commissioned judges.

B. After a motion subject to this Rule has been filed

by the Prothonotary's office, the Prothonotary shall

forward the motion to Central Legal Staff which shall

prepare and circulate to the motions panel a legal

memorandum and recommendation. Votes thereon

shall be due three weeks from the date on which the

motion and accompanying document are sent by

Central Legal Staff. Votes on cases which have been

identified as family law fast track cases shall be due

two weeks from the date on which the motion and

accompanying documents are sent by Central Legal

Staff.

C. If, in reviewing motions to be referred to a motions

panel, Central Legal Staff determines that the motion

is patently defective or the appeal is clearly defective

or can be disposed of based upon established case law,

the motion may be presented to the assigned motions

judge.

Date

02/07/2006

02/06/2006

0/06/2006

02/06/2006

01/18/2006

01/10/2006

01/09/2006

12/20/2005

12/30/2005

09/26/2005

09/07/2005

07/28/2005

10a

Civil Case: S-759-1993-

x x * * * KK

Filings

Filing

NOTICE OF APPEAL

REQUEST

STATEMENT OF MATTERS

COMPLAINED OF ON APPEAL

PROOF OF SERVICE

OBJECTION

CERTIFICATE OF SERVICE

BRIEF IN OPPOSITION TO

MOTION

CERTIFICATE OF SERVICE

ORDER OF COURT/COPIES MAILED

ORDER-DENIED

MOTION FOR RECONSIDERATION

BRIEF IN SUPPORT OF MOTION

CERTIFICATE OF SERVICE

ORDER-DENIED

PRAECIPE FOR ENTRY OF

JUDGMENT

JUDGMENT ENTERED-NOTICES

SENT

CERTIFICATE OF SERVICE

OPINION AND ORDER OF COURT

-COPIES MAILED

ORDER-GRANTED

ANSWER TO MOTION

CERTIFICATE OF SERVICE

BRIEF

CERTIFICATE OF SERVICE

MOTION TO COMPEL

BRIEF IN SUPPORT OF MOTION

CERTIFICATE OF SERVICE

ORDER OF COURT/COPIES MAILED

07/28/2005

07/13/2005

07/11/2005

06/27/2005

06/16/2005

06/15/2005

06/14/2005

05/19/2005

05/16/2005

lla

ORDER-STRICKEN FROM TRIAL

LIST

REPLY TO MOTION

CERTIFICATE OF SERVICE

REPLY BRIEF

CERTIFICATE OF SERVICE

CERTIFICATE OF READINESS

ORDER OF COURT/COPIES MAILED

ORDER/HEARING SCHEDULE FOR

ANSWER TO MOTION

BRIEF IN OPPOSITION TO MOTION

CERTIFICATE OF SERVICE

APPENDIX

MOTION TO STRIKE MOTION

BRIEF IN SUPPORT OF MOTION

CERTIFICATE OF SERVICE

PRAECIPE FOR ARGUMENT LIST

ORDER OF COURT/COPIES MAILED

ORDER/HEARING SCHEDULE FOR

PRAECIPE FOR ARGUMENT LIST

MOTION/SUMMARY JUDGEMENT

CERTIFICATE OF SERVICE

BRIEF IN SUPPORT OF MOTION

CERTIFICATE OF SERVICE

APPENDIX

MOTION

CERTIFICATE OF SERVICE

12a

COURT OF COMMON PLEAS OF SCHUYLKILL

COUNTY

CIVIL ACTION — LAW

CANOE MANUFACTURING No. S-759-1993

COMPANY and ROBERT

ULLMAN,

Plaintiffs

VS.

JOSEPH H. JONES, ESQUIRE

and WILLIAMSON,

FRIEDBERG & JONES,

Defendants

John P. McKelligott, Esquire, James P. Peters,

Esquire — for Plaintiffs

John R. Warner, Esquire, Alan E. Johnson, Esquire,

Walter F. Kawalec — for Defendant

OPINION OF COURT

DOLBIN, J.

The instant matter is before the Court on

defendant's Second Motion for Summary Judgment.

The procedural history of this aging case is somewhat

complex and should be reviewed.

A Complaint in this matter was filed on May 5,

1993 by Plaintiffs Canoe Manufacturing Company

and Robert Ullman against Defendants Joseph H.

Jones, Esquire and Williamson, Friedberg & Jones

hereinafter referred to as the "Jones defendants". At a

later time, Plaintiffs joined Meridian Bank and its

successors as defendants, hereinafter referred to as

the "Bank defendants". The Meridian Bank

defendants then filed a counterclaim against the

plaintiffs. A second amended Complaint was filed on

13a

August 20, 1993. After discovery was completed, both

the Jones defendants and the Bank defendants filed

separate motions for summary judgment. This Court

granted defendants earlier Motion for Summary

Judgment on the ground that the statute of

limitations had expired. The other grounds raised in

that first Motion were not addressed, inasmuch as

the Court thought that the granting of the motion on

those grounds rendered moot all other arguments.

Plaintiffs and the Bank defendants settled the claims

and counterclaims between them, leaving only the

Jones defendants remaining. The Superior Court in

its 2-1 Opinion of Febntary 16, 2004 reversed this

Court, and remanded the case to the trial court for

tria!.' Subsequently, on May 16, 2005 defendants

filed a Second Motion for Summary Judgment.

The plaintiffs theory is that defendant Joseph

H. Jones, Esquire, a partner of the law firm

Williamson Friedberg & Jones, while acting both as

counsel for plaintiff and as an officer of the Meridian

Bank committed an act of professional negligence

against plaintiff or breached his fiduciary duty to his

client. The facts pertinent to our inquiry demonstrate

that plaintiff was in the business of manufacturing

apparel at a factory in Pine Grove, Schuylkill County.

In order to conduct its business, plaintiff was

required to obtain financing for its operation. Plaintiff

contacted Meridian Bank and Meridian Commercial

Credit Corporation in the person of Knute Albrecht,

President and CEO of Meridian Commercial Credit

Corporation. In his letter of March 31, 1986 Mr.

Albrecht set forth the terms of the Bank's

' The Superior Court without explanation also “suggest"ed that

the case be assigned to a different judge upon remand. Hence, this

writer's appearance in the case.

14a

understanding with the plaintiff.” In spite of certain

monies lent by the Bank to plaintiff, plaintiff's

business nevertheless failed and was liquidated in

Bankruptcy. In order to have survived and succeeded

in business, plaintiff would have required more

financing than the Bank was then willing to advance.

Plaintiff's theory is that the letter constituted

a contract, and that defendant Jones committed a

negligent failure or conflict of interest in which he

sacrificed the interest of his client (the plaintiff) in

favor of the Bank on whose Board of Directors he sat.

If the letter was a contract, the plaintiff had certain

rights which he was entitled to claim; if the letter was

not a contract, plaintiff had no contractual leverage

with the bank. If the letter was a contract, defendant

Jones, as attorney for the plaintiff, either should have

worked with the plaintiff in asserting his contractual

rights or should not have breached his fiduciary

relationship with the plaintiff by allowing the

interests of the Bank to be superior to those of his

client.

We hold that the acts of the defendant Jones,

even if proven to a certitude to have been tortious,

cannot constitute a factual cause of the economic

harm suffered by the plaintiff, unless the plaintiff had

enforceable contractual rights which were violated by

the negligence or misfeasance of defendant Jones.”

* Although the letter was addressed to Mr. Robert Ullman,

President of Canoe Manufacturing at the Pine Grove address of

the Company, Mr. Ullman averred that he had never seen the

letter until the same was revealed to him at a deposition of

defendant Jones on May 13, 1991.

* Plaintiffs counsel at argument disagreed with this formulation,

asserting that even if the letter was found not to be a contract,

plaintiff should still be able to present his case to a jury on the

theory of punitive damages, legal malpractice and breach of

fiduciary duty. We are unable to find any basis for this assertion,

and would not allow such matters to be submitted to a jury.

15a

The only way in which such enforceable contractual

rights against Meridian could have come into

existence is by means of the Albrecht letter of March

31,1986. The alleged negligence or misfeasance of

defendant Jones could not have adversely affected the

plaintiff, unless the plaintiff had enforceable rights in

the first place. In fact, Jones's conduct, whatever it

was, could not even be deemed tortious unless the

letter created or conferred rights on his client, Canoe.

If the letter was of ancillary concern or was only a

memorandum, and, therefore, just another leaf of

paper in what is presumably a voluminous file, it

would grant no specific actionable rights to plaintiff

and then the failure of Jones to bring it to Canoe's

attention is of no consequence to Canoe.

Thus, plaintiffs entire cause of action stands

or falls on whether or not the letter can be construed

to be an enforeceable contract obligating the Bank to

do certain things in the future. We believe that it

cannot be so construed.‘

A fair reading of the letter demonstrates that

it was not a contract, but rather a list of events and

matters which could take place if other things were

first to happen. A fair reading of the letter, which

appears in many places and as Exhibit "F" in

Defendants' Appendix of Exhibits, demonstrates that

it is an agreement to agree, a roadmap of where the

Again, in order to submit anything to a jury, it must first appear

that defendants’ conduct was a factual cause of harm to the

plaintiff.

* In opposing defendants' motion for Summary Judgment,

plaintiffs have enlisted the impressive aid of Professor John E.

Murray, Jr., an authority on general contract law and an expert

as to the legal interpretation of the March 31, 1986 letter. While

respecting Dr. Murray's conclusions, we must nevertheless

disagree with them, and assert rather the Court's duty to

interpret writings (as either a contract or not) as a matter of law,

unaided by factual expert opinion. See e. g. Hutchison v. Sunbeam

Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986).

16a

parties could and would go in the usual course of

events and if unspecified other obligations were

entered into, that is, if certain other things occur. To

constitute a contract the letter would have to set forth

clear obligations for each of the parties. The letter

does not do so. Although some terms of the parties’

rights and obligations are established, many are

unresolved and left for agreement to a future time.

Because of that fact, the letter cannot form the basis

of assent, the basis of a binding contract. GMH

Assoc., Inc. v Prudential Realty Group, __ Pa.Super. _

__, 752 A.2d 889 (2000). The letter merely states that

its purpose is to enable the Meridian Credit Corp to

advance a portion of the new funds ...in anticipation

of a settlement. Item 9 of the letter states that

"(dJocumentation will include other standard terms

and conditions which must be satisfactory to us."

Item 10 states, "The above is not meant to be

all-inclusive, but merely a summary of the basic

terms." The letter calls itself a "brief outline," so that

the Credit Corporation may advance some funds "in

anticipation of settlement." Because of the many

missing elements and the intention of the letter to

look to the future, we find that it does not constitute a

binding contract.° On this basis alone we are granting

defendants’ motion for summary judgment.

Defendants have also argued that Summary

Judgment is warranted on the basis of integration of

the March 31, 1986 letter into the April 18, 1986 Loan

5 Plaintiffs have hired experts in an attempt to aid the court in

the interpretation of the March 31 letter as a contract. We do not

believe that the plaintiff can lift his case by his bootstraps from a

legal question to a factual one merely by the hiring of an expert.

The question of whether the letter is a contract, or not, is a pure

question of law to be determined by the Court. The fact that an

expert has been hired and renders advice to the Court does not

automatically create a question for a jury to decide. See Mannella

v. Pittsburgh, 334 Pa. 396, 402, 6 A.2d 70, 73 (1939); Maust v.

Creasy, 42 Pa.Super. 633 (1910).

17a

Settlement. We disagree. If Jones had indeed

committed a tort or a breach of fiduciary duty, his

wrongdoing would survive the later loan settlement,

if the letter itself had created any contractual rights.

We, therefore, deny defendants' motion on the basis of

subsequent integration.

Additionally, defendants argue that Summary

Judgment is warranted on the basis that when the

plaintiff was.subsequently discharged in Bankruptcy

Court, there was no abandonment by the trustee of

plaintiffs claim against Jones, so that the claim

against Jones was an asset of the debtor (plaintiff

herein) that was in fact discharged. We hold that

such a discharge without abandonment did in fact

occur, and that Summary Judgment in favor of the

defendants could be granted also on this ground.

Accordingly, we are compelled to enter the

following:

18a

COURT OF COMMON PLEAS OF SCHUYLKILL

COUNTY

CIVIL ACTION — LAW

CANOE MANUFACTURING No. S-759-1993

COMPANY and ROBERT

ULLMAN,

Plaintiffs

VS.

JOSEPH H. JONES, ESQUIRE

and WILLIAMSON,

FRIEDBERG & JONES,

Defendants

John P. McKelligott, Esquire, James P. Peters.

Esquire — for Plaintiffs

John R. Warner, Esquire, Alan E. Johnson, Esquire,

Walter F. Kawalec — for Defendant

ORDER OF COURT

AND NOW, this 30 day of December 2005,

Defendants' Second Motion for Summary Judgment is

granted. No genuine issue of material fact exists, and

Defendants are entitled to judgment as a matter of

law.

BY THE COURT:

/S/

CYRUS PALMER DOLBIN,

Judge

19a

MARSHALL, DENNEHEY, WARNER, COLEMAN &

GOGGIN, P.C.

By:

John R. Warner Alan E. Johnson Walter F. Kawalec,

Ill

Pa. 1.D. 40389 Pa. 1.D. #89690 Pa. I.D. #82783

* * * +

Attorneys for Defendants, Joseph H. Jones, Esquire

and Williamson, Friedberg & Jones

IN THE COURT OF COMMON PLEAS OF

SCHUYLKILL COUNTY, PENNSYLVANIA

CANOE MANUFACTURING CIVIL ACTION--LAW

and ROBERT ULLMAN,

NO. S-759-93

Plaintiffs

vs.

JOSEPH H. JONES, ESQUIRE

and WILLIAMSON, FRIEDBERG

& JONES

Defendants

PRAECIPE TO ENTER JUDGMENT

TO THE PROTHONOTARY:

Pursuant to the December 30, 2005 Order

granting Defendants’ Second Motion for Summary

Judgment, kindly enter judgment against Plaintiffs,

Canoe Manufacturing Company and Robert Ullman,

and in favor of Defendants, Joseph H. Jones, Esquire

and Williamson, Friedberg & Jones in the above

matter.

Respectfully submitted,

20a

MARSHALL, DENNEHEY,

WARNER, COLEMAN &

GOGGIN

By:

Alan E. Johnson

Pa. I.D. #89690

U.S. Steel Tower,

Suite 2900

600 Grant Street

Pittsburgh, PA 15219

(412) 803-1140

John R. Warner

Pa. L.D. #03389

620 Freedom Business

Center, Suite 300

King of Prussia, PA

19406

(610) 354-8253

Walter F. Kawalec, III

Pa. I.D. #82783

200 Lake Drive East

Suite 300

Cherry Hill, NJ 08002

(856) 414-6024

Attorneys for

Defendants, Joseph H.

Jones, Esquire and

Williamson, Friedberg &

Jones

2la

IN THE COURT OF COMMON PLEAS OF

SCHUYLKILL COUNTY, PENNSYLVANIA

CIVIL DIVISION

Plaintiffis) | File Number S-759-1993

M ROBERT ULLMAN

CANOE MANUFACTURING COMPANY

MERIDIAN BANK

Defendant(s) NOTICE OF FILING

JUDGMENT

JOSEPH ATTORNEY JONES

WILLIAMSON FRIEDBERG & JONES

MERIDIAN BANK

CORESTATES BANK NA

FIRST UNION NATIONAL BANK

CANOE MANUFACUTRING CO INC

M ROBERT ULLMAN

KAYE G ULLMAN

WACHOVIA BANK

CANOE MANUFACTURING COMPANY

Notice is hereby given that a Judgment in the

above-captioned matter has been entered against

CANOE MANUFACTURING COMPANY in the

amount of $ 0.00 on January 9, 2006.

PROTHONOTARY

If you have any questions regarding this Notice,

please contact the

filing party:

JAMES P. PETERS, ESQ.

EIGHT SAINT ALBANS AVE

22a

2ND FLOOR

NEWTOWN SQUARE PA 19073

610-353-8531

M ROBERT ULLMAN

1616 HILL ROAD

READING PA 19602

JAMES P. PETERS, ESQ.

EIGHT SAINT ALBANS AVE

2ND FLOOR

NEWTOWN SQUARE PA 19073

610-353-8531

23a

* * * *

CANOE MANUFACTURING: IN THE COURT OF

COMPANY and ROBERT : COMMON PLEAS OF

ULLMAN, . OF SCHUYLKILL

: COUNTY

Plaintiffs :

: CIVIL ACTION —

: LAW

Vv.

: NO. S-759-93

JOSEPH H. JONES,

ESQUIRE and

WILLIAMSON,

FRIEDBERG & JONES,

Defendants :

PLAINTIFFS' NOTICE OF APPEAL

Notice is hereby given that Canoe

Manufacturing Co., Inc. and M. Robert Ullman, the

Plaintiffs herein, hereby appeal to the Superior Court

of Pennsylvania from the Judgment entered in this

matter on the 9th day of January, 2006. This

Judgment has been entered in the docket as

evidenced by the attached copy of the docket entries

herein.

LAW OFFICE OF JOHN P.

McKELLIGOTT, Esq.

By: /S/ John P. McKelligott

Of counsel: John P. McKelligott, Esq.

James P. Peters, Esq. Attorney for Plaintiffs

24a

SUPERIOR COURT OF PENNSYLVANIA

Civil Docketing Statement

Pursuant to Pa.R.A.P. 3517, you must complete and

return this form and attachments to the Prothonotary

of the Superior Court by March 2, 2006. A completed

copy of this form must also be provided to the

appellee. THIS FORM IS FOR CIVIL APPEALS

ONLY. If this is not a civil appeal, notify the Superior

Court Prothonotary and the correct form will be

provided to you.

A. Case Identification

1. Case Caption: Canoe Manufacturing , et al. v.

Jones, J., et al

2. Superior Court Docket No.: 302 MDA 2006

3. Party or parties filing appeal:

Appeal of: CANOE MANUFACTURING CoO., INC.

& M. ROBERT ULLMAN

B. TIMELINESS OF APPEAL (Check only those

which apply)

(/) Date of judgment or order appealed from

JANUARY 6, 2006

(/) Date of Rule 236 notice JANUARY 9, 2006

(/) Date praecipe for judgment filed

JANUARY 9, 2006

(/) Date judgment filed JANUARY 9, 2006

(/) Date notice of appeal filed FEBRUARY 7,

2006

(/) Was reconsideration in lower court requested?

(/) Yes ( )No

Was it expressly granted? ( )Yes (W )No

(give date) DENIED 2/6/06

C. APPEAL FROM THE TRIAL COURT

Attach copies of the following: (1) the trial court's

25a

judgment, order or decree appeals from which this

appeal is taken; (2) notice of appeal; (3) trial court

docket; and (4) trial court opinion, if available.

1. Is the order appealed from a final appealable

order? (/)Yes ( )No (Specify rule and subsection

governing finality (e.g. Pa.R.A.P. 301, 313, 341)

PA. R.A.P. 301(d), 341(a), (b)(1) &(2)

2. Ifthe order is not a final order:

a. Is the order appealable as of right under

Pa.R.A.P. 311?

( )Yes ( ) No (specify which subsection)

b. Was permission to appeal granted pursuant to:

(i) Pa.R.A.P. 1311?() Yes() No Misc.

Docket. No. |

(ii) Pa.R.A.P. 1501 et seq? () Yes() No Misc.

Docket. No. __

3. How have fsstesbeen preserved? (e.g., pre-trial

motions, timely objection motion to remove non-suit,

petition to strike/open)

BY MOTION BELOW & BY ANSWERS

OPPOSING MOTIONS FILED BY THE

DEFENDANTS-APPELLEES

D. NATURE OF DISPOSITION BELOW

Below, you will find a list of possible procedural

dispositions in the court below. List the procedural

disposition applicable to this appeal using the

corresponding letter. If the disposition used in the

lower court does not appear on the list provided,

please type or print the nature of the disposition

below.

A. Change of Venue

B. Decree (include date of decree with

corresponding letter B)

C. Default Judgment

26a

Dismissal for failure to state a claim

Dismissal for failure to prosecute

Dismissal for lack of jurisdiction

. Non-pros under local rule

H. Grant/denial of injunction

I. Grant/denial of declaratory relief

J. Judgment after bench trial

K. Judgment after jury verdict

L. Judgment on the pleadings

M. Motion to remove non-pros

N. Motion to remove non-suit

O. Preliminary objections

P. Summary judgment (if summary judgment,

include which parties and/or claims remain in

the trial court) NO CLAIMS REMAIN IN THE TRIAL

COURT

Q. Arbitration

R. Grant/denial of petition for special relief

S. Other disposition (specify) DENIAL OF

MOTION TO STRIKE DEFENDANTS’ SECOND

MOTION FOR SUMMARY JUDGMENT AS

UNREASONABLY DELAYING TRIAL AFTER 12

YEARS, & DENIAL/REFUSAL TO GRANT PLS’

MOTION FOR RECONSIDERATION ASSERTING

PREJUDICE DUE TO DEFENDANTS’ PIECEMEAL

& UNDULY DELAYED MOTIONS FOR SUMMARY

JUDGMENT

loci

SUBSTANTIVE CASE TYPE

Action to quiet title

Asbestos

Contempt

Contract Dispute

Damages

Defamation

Easement

Employment

Ejectment

mom oO D>

27a

Emotional Distress, Intentional Emotional

Emotional Distress, Negligent

Equity

. Estates or Trusts

. Garnishment

Injunction

Insurance

Landlord/Tenant

Legal Malpractice

Libel

Medical Malpractice

. Mechanic's Lien

Mortgage Foreclosure

’. Motor Vehicle Trespass

Negligence

Probate

Products Liability

Property Dispute

BB. Replevin

CC. Trespass

DD. Wrongful Death/Survival Statute

PNM ESCH PRPONOZEP A

E. TYPE OF CASE

On Page 3 you will find a list of substantive case

types. List the substantive case type(s) involved in

this Appeal using the corresponding letter(s). List as

many as apply. If your case type does not appear on

the list provided, please type or print the substantive

type of case involved in this appeal.

R, X, CC (BREACH OF FIDUCIARY DUTY)

F. RELATED CASE

List all related cases pending in any court (e.g., co-

defendants, cross appeal, cross-claims, counterclaims,

bankruptcy proceedings or other appeals):

CASE NAME COURT CASE NO.

28a

TYPE OF CASE

THERE ARE NO RELATED CASES PENDING

Docket No. of cross appeal

G. DESCRIPTION OF APPEAL (If necessary attach

additional pages for completion of 1 and 2)

1. Brief description of action and result below:

SEE ATTACHED SHEET

2. Issues to be raised on appeal:

SEE ATTACHED SHEET

HAVE YOU ATTACHED: Order from which appeal

is taken? (/) Yes ( ) No

Notice of appeal? (“) Yes ( ) No

Trial court docket? (/) Yes ( ) No

Trial court opinion? (/) Yes ( ) No

IF THIS DOCKETING STATEMENT IS NOT

FILLED OUT IN ITS ENTIRETY WITH ALL

REQUESTED DOCUMENTS ATTACHED, YOU

MAY BE SUBJECT TO DISMISSAL OF THE

APPEAL. See Pa.R.A.P. 3517, amended June 5, 2001,

effective September 1, 2001.

Signature John P. McKelligott Date 3/1/06

Print Name JOHN P. McKELLIGOTT, ESQ. -

Atty. I.D. No. 16221

E-Mail Address jpmesq_200@YAHOO.COM

29a

G.1. Brief description of action and result below:

This is a reach of fiduciary duty and legal

malpractice action. Plaintiffs are Canoe

Manufacturing Co., Inc., an apparel manufacturer

and once the second-largest employer in

Schuylkill County, and M. Robert Ullman, Canoe's

President and CEO. Defendants are Joseph

Jones, Esq. and his law firm; Mr. Jones is the

attorney who represented Canoe in its effort to

secure new financing from Meridian Commercial

Credit Corp. ("MCCC") to help Canoe weather a

cash crunch in 1985 and 1986.

The controversy arises out of Canoe's efforts,

in 1985 and 1986, to borrow additional funds from

Meridian Commercial Credit Corp. ("MCCC") to

enable it to manufacture apparel fill orders

already booked for 1986. In the course of seeking

this new funding, Plaintiffs retained Joseph

Jones, Esq. and his firm (the Defendants) to

represent them, to participate in and assist with

negotiations and to draft or review documents in

connection with implementing the new financing.

In the course of the negotiations seeking new

financing, the bank sought additional collateral,

and a “commitment letter" agreeing to furnish

new financing in return for additional collateral

was (after approval and authorization by MCCC's

Loan Committee) issued to Canoe; this

“commitment letter" was signed by Knute

Albrecht, President of MCCC, and countersigned

on Canoe's behalf by M. Robert Ullman, Canoe's

President.

In the course of drawing up the documentation

for securing additional collateral, language was

inserted defining Canoe's "borrowing base" in such

a fashion as to secure, for the bank, the additional

collateral from Canoe but to remove the bank's

obligation to extend additional financing. Initially,

Canoe's attorneys — the Defendants/Appellees

30a

herein — opposed the inclusion of such language on

the grounds that such language was prejudicial to

Canoe and inconsistent with the "commitment

letter." However, in the end, that language was

included in the final documents, Canoe did

furnish the additional collateral, and Canoe did

not receive additional financing. And Canoe failed.

Plaintiffs/Canoe assert legal malpractice

against the atterneys for failing to ensure that the

final documents were consistent with the

"commitment letter" and for failing to advise

Plaintiffs/ Appellants that, if they signed the final

documents, they would be putting up additional

collateral without securing in return the new

financing that they had bargained for.

Plaintiffs/Canoe assert breach of fiduciary

duty against the attorneys on the grounds that the

attorneys knew (or should have known) that the

final documents were prejudicial to Canoe and

inconsistent with the "commitment letter," that

the attorneys nonetheless permitted Plaintiffs/

Canoe to proceed to sign the final documents and

put up the additional collateral without getting

the new financing, and Plaintiffs/Canoe submit

that the attorneys (or some or one of them) so

acted in order to protect a corrupt and conflicting

interest — namely, the interest that Joseph Jones,

Esq. owed as a Director of Meridian Bank (the

parent of MCCC) to protect the bank's interests.

Plaintiffs submit that the interest of Jones as a

Meridian Bank Director came into irreconcilable

conflict with his duty to zealously represent

Canoe, et al. in their quest to borrow funds from

Meridian Bank's subsidiary when Meridian Bank

determined to secure additional collateral to

replace certain prior "guarantees" of existing

Canoe (and other) loans from a third party

financing institution, "guarantees" that posed an

FDIC regulatory problem for Meridian Bank.

3la

Plaintiffs/Canoe contend that the attorney

Defendants/Appellees never advised them that, in

signing the final loan restructuring documents,

they were putting up additional collateral but not

getting the new financing; that they would never

have done so if they had known that they would

not get the new financing because, if Canoe were

to fail, they would have let it fail without risking

the additional collateral; and that the knowing

failure of their attorneys to so advise them arises

out of attorney Jones's conflict of interest, and his

apparent choice to prefer Meridian Bank's

commercially valuable interests to the interest of

the clients who were paying his bills. On this

basis, Plaintiffs/Canoe assert breach of fiduciary

duty by one or more of the attorney defendants.

In 1999, the Defendants’ moved for summary

judgment asserting numerous grounds including

the statute of limitations. Although numerous

grounds were asserted for summary judgment, the

Court of Common Pleas for Schuylkill County, per

the Hon. J. Michael Stine, on December 22, 2000,

granted summary judgment only on the basis of

the statute of limitations. Because this ruling left

open certain claims, no appeal was filed until

Plaintiffs/Canoe resolved their differences with

the parties other than the attorney Defendants;

once that was accomplished, Plaintiffs/Canoe filed

a Praecipe for Entry of Judgment and appealed

the matter to the Superior Court. On February 16,

2004, the Superior Court reversed and remanded

the decision of the Court of Common Pleas for

1 At the time, Meridian Bank and MCCC (or their successors)

were also parties Defendant, in addition to the attorney

Defendants. Plaintiffs have subsequently resolved their

differences with Meridian Bank and MCCC (and their successors),

leaving the attorney Defendants as the remaining partiés herein.

32a

Schuylkill County granting summary judgment to

Defendants on the basis of the statute of

limitations. The Superior Court remanded this

case to Schuylkill County for trial, and it included

the unusual suggestion that the matter be

assigned to a different Judge in Schuylkill

County.

The Attorney Defendants then petitioned the

Supreme Court of Pennsylvania for Allowance of

Appeal. After that Petition was denied, the case

was remanded to the Court of Common Pleas for

Schuylkill County. Instead of Judge Stine, this

time the case was assigned to the Hon. C. Palmer

Dolbin.

Back in the Common Pleas Court of Schuylkill

County, the Attorney Defendants renewed their

quest for Summary judgment by filing a Second

Motion raising new claims for Summary

Judgment and reasserting the open grounds left

over from their first such Motion (alleged release

and collateral estoppel/res judicata based upon a

prior federal court litigation). For the first time,

they raised three new issues: (1) that Plaintiffs

have no rights herein because the March 31, 1986

“commitment letter" is only an unenforceable

“agreement to agree"; (2) that the March 31, 1986

“commitment letter" is merged into the

subsequent loan restructuring final agreements of

April 18, 1986, and thus that the March 31, 1986

"commitment letter" is of no legal significance;

and (3) that consideration of the issues raised by

Plaintiffs/Canoe herein is precluded by the final

decree issued in the Canoe Manufacturing Co.,

Inc. bankruptcy proceeding.

Immediately following service of the Attorney

Defendants’ Second Motion for Summary

Judgment, Plaintiffs/Canoe moved to Strike the

Second Motion for Summary Judgment on the

grounds that, in violation of Pa.R.C.P. 1035.2, it

33a

posed “unreasonable delay" in bringing this case

to trial. In claiming “unreasonable delay",

Plaintiffs/Canoe asserted that the case was at the

time 12 years old’, it dealt with events occurring

20 years earlier®, that the primary witnesses were

elderly such that the interests of justice required

the case to proceed promptly to trial‘, that

prejudice had already occurred to all parties

herein due to the passage of time’, and that the

interests of justice required the assignment of this

case for trial without further delay. Further,

Plaintiffs/Canoe submitted that, to the extent

that the Attorney Defendants felt that they had

grounds for defense as asserted in their Second

Motion for Summary Judgment, such defenses

could be raised at trial without prejudice to the

Attorney Defendants.

The Court denied Plaintiffs/Canoe's Motion to

Strike on June 16, 2005, before response was

required from the Attorney Defendants.

Plaintiffs/Canoe opposed the Attorney

Defendants' Second Motion for Summary

Judgment and, after considerable briefing and

submission of exhibits on both sides, the matter

was argued in July, 2005. No transcript was made

2 The case was filed in 1993.

3 The events at issue herein occurred in 1985 and 1986.

* The primary witnesses are Mr. Jones, who is more than 80

years old, and Mr. Ullman, who is 76. While both gentlemen are

in good health, neither is young, and Mr. Ullman, in January,

2006, suffered a heart attack.

5 In approximately 2003, Home Insurance Company, the

professional liability insurer for the Attorney Defendants herein,

became insolvent and passed into reorganization in the State of

New Hampshire. Plaintiffs/Canoe contended that this occurrence

constituted prejudice to all parties herein due to the excessive

passage of time. '

34a

of this proceeding.

On December 30, 2005, the Court of Common

Pleas for Schuylkill County, per the Hon. C.

Palmer Dolbin, granted the Attorney Defendants’

Second Motion for Summary Judgment on the

grounds of the alleged "agreement to agree" and

the preclusion of Plaintiffs' claims by the final

Decree entered years ago in the Canoe

Bankruptcy proceeding. The Court denied the

Attorney Defendants’ Second Motion for

Summary Judgment insofar as it was based on

the doctrine of merger. The Court noted that,

when the Attorney Defendants filed their Second

Motion for Summary Judgment, they reasserted

the open grounds from their First Motion for

Summary Judgment; however, the Court did not

address those grounds in its Order and Opinion,

thereby leaving them open to be reasserted again

in the future in the event that Plaintiffs/Canoe

succeed on this appeal and secure the remand of

this case to the Court of Common Pleas.

Thereafter, on January 9, 2006, upon Praecipe

of the Attorney Defendants, the Court entered

Judgment herein in favor of Defendants, and

against Plaintiffs. On January 18, 2006,

Plaintiffs/Canoe moved for Reconsideration

asserting prejudice from the Court's denying the

Motion to Strike and leaving open the undecided

issues left over from the Attorney Defendants’

First Motion for Summary Judgment.

Plaintiffs/Canoe also asserted that the Court's

ruling on "agreement to agree" constituted

mistake of law, that it wrongly applied the case

law of Pennsylvania and wrongfully invaded the

jury's province, and that it incorrectly analyzed

this matter on the basis of contract law when the

causes of action asserted herein were tort causes

of action for professional negligence/legal

malpractice and breach of fiduciary duty.

35a

Further, Plaintiffs/Cance asserted mistake of law

in that the Court misinterpreted the Bankruptcy

Decree and mistook causes of action "abandoned"

in the bankruptcy proceeding. Equally,

Plaintiffs/Canoe asserted mistake of law in that

the Canoe Bankruptcy Decree cannot dispose of

Mr. Ullman's causes of action herein since he was

not a party to the Canoe bankruptcy proceeding.

On February 6, 2006, the Attorney Defendants

opposed Plaintiffs/Canoe's Motion for

Reconsideration.

On February 6, 2006, the Court of Common

Pleas for Schuylkill County denied

Plaintiffs/Canoe's Motion for Reconsideration.

On February 7, 2006, Plaintiffs/Canoe filed

their Notice of Appeal in the Court of Common

Pleas for Schuylkill County, along with associated

appeal papers.

G.2 Issues to be raised upon appeal:

1. The Court committed error of law in granting,

per the Order of December 30, 2005, Defendants’

Motion for Summary Judgment on the basis that the

letter of March 31, 1986 did not constitute an

enforceable contract, and that accordingly the

Plaintiffs have no rights herein.

2. The Court committed error of law in granting,

per the Order of December 30, 2005, Defendants'

Motion for Summary Judgment on the basis that the

Final Decree in Bankruptcy, entered by the U.S.

District Court for the Eastern District of

Pennsylvania in the Canoe Manufacturing Co., Inc.

bankruptcy proceedings, deprived this Court of

jurisdiction of this matter or otherwise precluded

Plaintiffs from pursuing their claims herein.

3. The Court committed error of law in denying,

per its Order of June 16, 2005, Plaintiffs’ Motion to

Strike Defendants' Second Motion for Summary

36a

Judgment on the grounds that proceeding with such

motion at that time amounted to unreasonable delay

in bringing this case to trial, in violation of

Pa.R.C.P.1035.2.

4. Whether, in the event of remand of this case

for trial after appeal, Plaintiffs should be granted a

change of venue on the grounds that there no longer

exist reasonable grounds to believe that Plaintiffs can

receive a fair and timely hearing of their claims in the

Court of Common Pleas for Schuylkill County

because, inter alia, the Court failed or refused, in its

Order of December 30, 2005, to decide all open issues

of summary judgment herein®, and because the Court

denied Plaintiffs' Motion to Strike Defendants' Second

Motion for Summary Judgment as constituting

unreasonable delay in bringing the matter to trial —

a ruling which, among other things, potentially allows

Defendants to hereafter again renew their Summary

Judgment claims piecemeal to force Plaintiffs into the

necessity of potentially two more appeals of this

matter before the case is permitted to proceed to trial:

a) As acknowledged in the Opinion of

December 30, 2005, issues raised by Defendants in

1999 in their First Motion for Summary Judgment,

but not decided at that time, and renewed by

Defendants in this Second Motion for Summary

Judgment, were before the Court at the time it

prepared its Order and Opinion of December 30,

2005, yet it did not decide those matters’ before it

° The undecided issues are the issues first raised by Defendants

in their First Motion for Summary Judgment (which was file? °

October, 1999), which issues are as yet undecided by the Cox «- of

Common Pleas of Schuylkill County after two rounds of

consideration of Defendants’ Motions for Summary Judgment.

7 These open issues include Defendants’ contention that release

language included in certain bankruptcy proceeding "Cash

Collateral" agreements released Plaintiffs' claims herein, and

Defendants’ contention that Plaintiffs' claims herein were

37a

which were left over undecided from the time of the

Defendants’ First Motion for Summary Judgment;

b) The case was at the time 12 years old,

having been filed in May, 1993;

c) The controversy herein involves matters

occurring in 1986 -- matters approximately 19 years

earlier at the time the Court denied Plaintiffs’ Motion

to Strike;

d) The primary witnesses, Joseph Jones, Esq.

and M. Robert Ullman, Defendant and Plaintiff

herein, are over 80 and over 76 respectively at this

moment in time, thus being of an age such that

further significant passage of time is prejudicial as a

matter of law;

e) Prejudice has already occurred herein due

to the passage of time in that, in approximately 2000

or 2001, Defendants’ professional liability insurer,

- Home Insurance Company, filed for insolvency and

went into reorganization under the laws of the State

of New Hampshire;

f) Defendants’ first moved for Summary

Judgment on several grounds in October, 1999, and

their Motior was granted on the sole grounds of the

statute of limitations in December, 2000;

g) Plaintiffs thereafter appealed the grant of

Summary Judgment to the Superior Court, which

reversed the matter and remanded the case for trial,

suggesting that upon remand the matter be assigned

to a different trial Judge;

h) Defendants thereupon filed a Petition for

Allowance of Appeal, which Petition was opposed by

Plaintiffs and denied by the Supreme Court of

Pennsylvania, resulting in the remand of this case to

precluded by Orders entered in the U S. District Court for the

EasternDistrict of Pennsylvania in a proceeding commenced by

Mr. Ullman (not Canoe) pursuant to the doctrines of res judicata

and/or collateral estoppel. Plaintiffs opposed Defendants’ requests

for Summary Judgment on all of these issues.

38a

the Court of Common Pleas for Schuylkill County on

November 16, 2004;

i) The Plaintiffs' contentions herein include

serious contentions of conflict of professional interest

and intentional, and even corrupt, breach of fiduciary

or professional duty — contentions which necessarily

must be personally and professionally repugnant to

Defendants beyond the strictures of their potential

financial exposure herein;

j) Defendants are prominent in the practice

of law in Schuylkill County, having extensive contacts

in the business, legal and Court communities of

Schuylkill County, and they are believed to have

significant influence within such communities;

k) By refusing to decide all Summary

Judgment issues which were before it, which issues

were left open after decision on the First Motion for

Summary Judgment, and when such open issues were

explicitly renewed by Defendants in their Second

Motion for Summary Judgment, the Court leaves

open the possibility for Defendants to renew their

claims for Summary Judgment a third time herein if

Plaintiffs should prevail upon appeal and succeed in

having this case remanded for trial — thereby

engendering an unreasonable further delay in

bringing this matter to trial;

1) The Court's conduct of deciding Summary

Judgment issues piecemeal, thereby prolonging the

matter of bringing this case to trial beyond 12 years

or more, and thereby raising the possibility that

Defendants could again renew these Summary

Judgment Motions, get one ground for Summary

Judgment granted and force Plaintiffs to undergo the

possibility of a third and even fourth round of appeals

before bringing this matter to trial; and

m) Plaintiffs submit that such delay, as

documented in this record, amounts to prejudicial

delay as a matter of law and justifies the supervisory

intervention of the appellate courts of Pennsylvania.

39a

In the

Superior Court of Pennsylvania

302 MDA 2006

CANOE MANUFACTURING COMPANY

and ROBERT ULLMAN,

Plaintiffs/Appellants

JOSEPH H. JONES, ESQUIRE and

WILLIAMSON, FRIEDBERG & JONES,

Defendants/Appeliees

MOTION OF DEFENDANTS/APPELLEES,

JOSEPH H. JONES, ESQUIRE and

WILLIAMSON, FRIEDBERG & JONES,

TO QUASH PLAINTIFFS' APPEAL

Defendants/Appellees, Joseph H. Jones, Esq., and

Williamson, Friedberg & Jones (hereinafter "moving

defendants"), by and through their attorneys, John J.

Hare, Esq., Alan E. Johnson, Esq., and Marshall,

Dennehey, Warner, Coleman and Goggin, respectfully

move this Honorable Court to quash plaintiffs’

appeal, and in support thereof aver as follows:

1. “Upon review of an appeal, {this Court's] first

task is to determine whether the matter is properly

before [it]....It is well-established that the failure to

file a timely appeal will divest this Court of

jurisdiction." Tohan v. OQwens-Corning Fiberglas

Corp., 696 A.2d 1195, 1198 (Pa. Super. 1997)(citations

omitted).

2. By way of introduction, this Motion presents a

straightforward issue of appellate jurisdiction,

namely, whether plaintiffs filed a timely appeal from

the trial court's Order of

40a

December 30, 2005, which awarded summary

judgment to moving defendants and disposed of all

remaining claims and all remaining parties. Since the

docket establishes beyond doubt that plaintiffs did

not appeal until February 7, 2006, their appeal was

clearly untimely and this Court lacks jurisdiction to

proceed. Therefore, while this case has a complicated

procedural history, it must now be dismissed on the

simple basis that plaintiffs' appeal was untimely.

3. This appeal emanates from the Court of

Common Pleas of Schuylkill County, Civil Action No.

S-759-1993. (See Exhibit "A," Docket Entries).

4, On May 5, 1993, plaintiffs commenced this

civil action via writ of summons. (Id.).

5. In their subsequent Second Amended

Complaint, which was filed ori August 20, 1993,

plaintiffs named as defendants the moving

defendants and Meridian Bank and its successors

(hereinafter "the Meridian defendants"). (See Exhibit

"A," Docket Entries).'

6. Plaintiffs and the Meridian defendants

ultimately settled all claims and counterclaims

between them and, by Stipulation approved by the

trial court and filed on March 31, 2003, they

confirmed that all claims between them had been

resolved and dismissed. (See Exhibit "B,"

Stipulation).

7. The settlement between plaintiffs and the

Meridian defendants left the moving defendants as

the only defendants in the case.

8. On May 16, 2005, moving defendants filed a

Motion for Summary Judgment with respect to all

While plaintiffs’ precise theory of liability is not relevant to this

Motion, their Complaint (and subsequent Amended Complaints)

asserted claims of professional negligence and breach of fiduciary

duty against moving defendants in connection with plaintiffs'

attempts to borrow money from Meridian Commercial Credit

Corporation.

Ala

claims against them. (See Exhibit "C," Moving

Defendants’ Motion for Summary Judgment).

9. By Order dated December 30, 2005, the trial

court granted the moving defendants’ Motion for

Summary Judgment, and it entered judgment in

favor of moving defendants and against plaintiffs.

(See Exhibit "D," Order and Opinion of December 30,

2005).

10. The Order was docketed on December 30,

2005 and Rule 236 Notice was sent the same day.

(See Exhibit "A," Docket Entries, p. 2; containing the

notation "COPIES MAILED").

11. Pennsylvania Rule of Appellate Procedure

341(b) defines a final order as "any order that ... (1)

disposes of all claims and of all parties[.]" Pa.R.A.P.

341(b)(1).

12. Pursuant to Rule 341, an Order granting

summary judgment disposing of all claims and all

parties is clearly final and appealable. See e.g.,

Feidler v. Morris Coupling Co., 784 A.2d 812, 815 (Pa.

Super. 2001)("Since the order granting summary

judgment disposed of the entire matter, the order

itself was final and appealable.")emphasis added).

13. Pennsylvania Rule of Appellate Procedure

903(a) provides that an appeal “shall be filed within

30 days after the entry of the order from which the

appeal is taken." Pa.R.A.P. 903(a).

14. ‘Thws, plaintiffs had 30 days, or until

January 29. 2006, to file an appeal from the Order of

December (43, 2005. Tohan, 696 A.2d at 1200 ("It is

well-established that an order granting summary

judgmené is final and appealable. Therefore, to

preserve the right to appeal once summary judgment

is granted, an appeal must be filed within thirty (30)

days after the entry of that order.")(citations omitted).

15. Plaintiffs filed their appeal on February 7,

2006, thirty-nine (39) days after the trial court

granted summary judgment. (See Exhibit "A," Docket

Entries).

42a

16. Thus, plaintiffs appeal was clearly

untimely and, as a result, this Court lacks appellate

jurisdiction. See In re Trust Under Deed of Green,

779 A.2d 1152, 1157 (Pa. Super. 2001), appeal denied,

805 A.2d 524 (Pa. 2002)("Since the instant notice of

appeal was filed beyond the thirty-day time limit

within which to file an appeall,] ... we must conclude

that we lack jurisdiction to consider the appeal.").

17. Asaresult, plaintiffs' appeal must be

quashed. Id. ("We order the appeal quashed... .

Appellant has failed to comply with the law of

appellate procedure and we cannot find that

jurisdiction exists where it clearly does not.").

18. Plaintiffs may raise two arguments in

opposition to this Motion to Quash, but both must be

summarily rejected.

19. First, plaintiffs may point out that, on

January 18, 2006, they filed a Motion for

Reconsideration of the Order of December 30, 2005,

which awarded summary judgment to the moving

defendants. (See Exhibit "A," Decket Entries).

20. However, the law is well-settled that the

filing of a Motion for Reconsideration after summary

judgment is entered does not toll the appeal time. See

In re Trust Under Deed of Green, 779 A.2d 1152,

1156 (Pa. Super. 2001), appeal denied, 805 A.2d 524

(Pa. 2002)("The filing of a petition for reconsideration

of a final order granting summary judgment does not

toll the thirty-day appeal period.").*

21. Secondly, plaintiffs may rely on the fact

that, following the entry of summary judgment on

December 30, 2005, a Praecipe for Entry of Judgment

was filed on January 9, 2006. (See Exhibit "A," Docket

Entries).

2 In the instant matter, the Motion for Reconsideration was

denied by the trial court on February 6,2006, after the thirty day

appeal period had already expired. (See Exhibit "A," Docket

Entries).

43a

22. Once again, however, the Order of

December 30, 2005 had already granted summary

judgment and “the order itself was final and

appealable[.]" Feidler, 784 A.2d at 815 ("Since the

order granting summary judgment disposed of the

entire matter, the order itself was final and

appealable.").

23. Since the summary judgment was itself a

final judgment, the subsequent Praecipe for Entry of

Judgment "was a meaningless act" that did not toll

the appeal time. See Progressive Home Fed. Say. &

Loan v. Kocak, 518 A.2d 808, 809 (Pa. Super. 1986)

(“Once the trial court's order entering [summary]

judgment was filed on July 8, 1985, judgment was

entered. The subsequent praecipe for judgment was a

meaningless act because the judgment had already

been entered.").

24. In addressing a virtually identical issue

nearly two years ago, this Court stated the following:

Since the order entered judgment on all

claims and for all parties, it was

immediately appealable and judgment

did not need to be later entered by

praecipe, although it was. ... We advise

the bar to be wary of a common pitfall[,]

the appeal must be filed within thirty

days of the Rule 236 notice of summary

judgment, not a later-filed praecipe to

enter judgment.

Gartland v. Rosenthal, 3850 A.2d 671, 671 n.1 (Pa.

Super. 2004)(emphasis added).

25. Thus, contrary to plaintiffs' expected

argument, the Order granting summary judgment,

rather than the Praecipe for Entry of Judgment,

triggered plaintiffs’ appeal time.

26. Since Rule 236 Notice was issued on the

same date that the December 30th Order was issued,

(See Exhibit "A," Docket Entries, p. 2), plaintiffs’

appeal time commenced on that date and it expired

44a

on January 29, 2006.

27. Since plaintiffs failed to timely appea! the

grant of summary judgment, there can be no doubt

that this Court lacks jurisdiction and the appeal must

be quashed. See In re Trust Under Deed of Green,

779 A.2d at 1157; accord, Cresswell v. Pennsylvania

Nat'l Mut. Cas. Ins. Co., 820 A.2d 172, 181 (Pa.

Super. 2003)("[I]t is clear Appellant's appeal from the

grant of summary judgment in favor of Appellee

PNMCI is untimely because it was filed more than 30

days after an immediately appealable final order.

Therefore, this Court is divested of jurisdiction to

entertain the appeal as to the grant of summary

judgment in favor of Appellee PNMCI, and we must

quash.")(citations omitted).

WHEREFORE, Defendants/Appellees, Joseph H.

Jones, Esaq., and Williamson, Friedberg & Jones,

respectfully move this Honorable Court to quash

plaintiffs’ appeal.

MARSHALL, DENNEHEY,

WARNER, COLEMAN &

GOGGIN,

BY:

John J. Hare, Esq.

Pa. I.D. #70419

1845 Walnut Street

Philadelphia, PA 19103

(215) 575-2609

Alan E. Johnson, Esq.

Pa. I.D. #89690

2900 U.S. Steel Tower

600 Grant Street

Pittsburgh, PA 15219

(412) 803-1140

Attorneys for

45a

Defendants/Appellees,

Joseph H. Jones, Esq., and

Williamson, Friedberg & Jones

46a

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Motion to Quash Plaintiffs' Appeal has been

served upon counsel listed below via U.S. First Class

Mail, postage prepaid, this date:

John P. McKelligott, Esquire

James P. Peters, Esquire

8 Saint Albans Avenue

Newtown Square, PA 18073

Attorney for Plaintiffs

MARSHALL, DENNEHEY,

WARNER, COLEMAN & cOGGIN,

BY:

John J. Hare, Esq.

Pa. I.D. #70419

1845 Walnut Street

Philadelphia, PA 19103

(215) 575-2609

Alan E. Johnson, Esq.

Pa. I.D. #89690

2900 U.S. Steel Tower

600 Grant Street

Pittsburgh, PA 15219

(412) 803-1140

Attorneys for Defendants/Appellees,

Joseph H. Jones, Esq., and

Williamson, Friedberg & Jones

Date: 2-23-06

47a

IN THE

SUPERIOR COURT OF PENNSYLVANIA

No. 302 MDA 2006

CANOE MANUFACTURING CoO., INC.

and M. ROBERT ULLMAN,

Plaintiffs, Appellants

JOSEPH H. JONES, ESQUIRE

and WILLIAMSON, FRIEDBERG & JONES,

Defendants, Appellees

ANSWER OF APPELLANTS/PLAINTIFFS

CANOE MANUFACTURING CO., INC. and M.

ROBERT ULLMAN TO DEFENDANTS/

APPELLEES’ MOTION TO QUASH

Of counsel: JOHN P. McKELLIGOTT,

ESQ.

Attorney 1.D. No. 16221

James P. Peters, Esq. 8 St. Albans Avenue — Flr.

Attorney I.D. No. 38682 Newtown Square, PA 19073

Law Office of James P. (610) 351-8531

Peters, P.C.

8 St. Albans Ave. — Upper Story

Newtown Square, PA 19073 (610) 353-8531

Attorneys for Appellants/Plaintiffs CANOE

MANUFACTURING CO., INC. and

M.ROBERT ULLMAN

48a

ANSWER OF PLAINTIFFS/APPELLANTS TO

DEFENDANTS/APPELLEES' MOTION TO QUASH

1. The allegations contained in Paragraph | of

Defendants/Appellees' Motion are conclusions of law,

not averments of material fact. As such, these

allegations are deemed denied without specific

response. Strict proof, if material, is demanded.

2. Admitted only that Plaintiffs filed their appeal

herein on February 7, 2006, taking their appeal from

the Judgment entered herein against them on

January 9, 2006. As to all other allegations in

Paragraph 2, Plaintiffs/Appellants' respond that such

allegations are conclusions of law, not averments of

material fact. As such, these allegations are deemed

denied without specific response. Strict proof, if

material, is demanded.

3. Admitted.

4. Admitted.

5. Admitted.

6. Admitted.

7. Admitted.

8. Admitted.

9. Admitted.

10. Admitted.

11. Admitted.

12. Denied. To the contrary, the Order granting

Summary Judgment may become final and

appealable if it is entered in a declaratory judgment

action, or if it is drafted in such a fashion as to

constitute Entry of Judgment within the meaning of

Pa. R.C.P. 227.4(2). There are several requirements

in that must be satisfied if an Order granting

Summary Judgment is to be deemed a final order and

immediately appealable; among these is the

requirement that such Summary Judgment Order not

only dispose of all parties involved, it must also

dispose of all claims. This case is not a declaratory

judgment action as was Cresswell (820 A.2d 172), and

49a

the other requirements necessary were not satisfied

in this case (as set forth in greater detail below

herein).

13. Admitted.

14. Denied as to January 29, 2006 and as to

appeal from the Order of December 30, 2005. To the

contrary, and pursuant to Pa. R.A.P. 341(b)(1), the

Order which disposed of all] claims as well as all

parties was the Praecipe for Entry of Judgment filed

on January 9, 2006 because the Order of December

30, 2005, granting Summary Judgment on two of the

claims asserted", denying Summary Judgment on one

of the claims asserted”, and leaving open and

un-ruled-upon two additional claims for Summary

Judgment’, failed to dispose of all claims as well as

' The “agreement to agree" claim for summary judgment and the claim

for summary judgment based on the final decree in bankruptcy for Canoe

Manufacturing Co., Inc.

? The claim for summary judgment based upon the doctrine of "merger."

The claims for summary judgment based upon "release" and "res

judicata/collateral estoppel" arising out of an earlier federal court action. These ty

claims for summary judgment were first asserted in Defendants’ First Motion for

Summary Judgment, which Motion was filed in October, 1999. When the Court

ruled (on December 22, 2000) on that First Motion for Summary Judgment, it

granted Summary Judgment on another issue, leaving these issues open to be

renewed at a later time. It was not until after Paintiffs/Appellants amicably

resolved their differences with other parties to the litigation that they were able t

file a Praecipe for Judgment and appeal the ruling on the First Motion for

Summary Judgment; at Plaintiffs/Appellants' behest, the Superior Court on

February 16, 2004, reversed the trial court's grant of summary judgment and

remanded the matter for trial. Thereafter, after Defendants/Appellants

unsuccessfully petitioned the Supreme Court of Pennsylvania for Allowance of

Appeal, the matter was returned to the trial court. However,

Defendants/Appellants — after more than 12 years — again renewed their quest

Summary Judgment. Once again, they got a decision in their favor from this trial

court, and once again the trial court left open certain claims for summary

judgment, therevy assuring Defendants/Appellees yet another crack at the

summary judgment remedy in the event that Plaintiffs/Appellants succeed (and

live long enough) on this appeal.

50a

all parties. Since the Order of December 30, 2005 left

open certain claims for Summary Judgment,

Plaintiffs/Appellants first sought reconsideration

(seeking at least to convince the trial court to rule on

all claims for summary judgment). That Motion was

denied, and, Judgment having been expressly entered

by Praecipe’, thereby closing out all open claims,

Plaintiffs/Appellants filed their Notice of Appeal

within thirty (30) days thereof — on February 7,

2006. Hence, Plaintiffs/Appellants are appealing from

the Judgment which extinguished all claims, that of

January 9, 2006, and their appeal is timely.

15. Admitted.

16. Denied. To the contrary, the Order

properly appealed from is the Judgment entered

herein on January 9, 2006. Since the Notice of Appeal

was filed on February 7, 2006, the appeal is timely,

and the Court has jurisdiction pursuant to 42 Pa. CS.

§742. |

17. Denied. To the contrary, the appeal herein

is timely because the Order properly appealed from is

the Judgment of January 9, 2006, as set forth in

greater detail in Paragraphs 14 and 16 hereof.

18. The averments in Paragraph 18 of the

Motion to Quash are speculation and/or conclusions of

law, not averments of material fact. As such,

Plaintiffs/Appellants are not required to plead

thereto, and such averments are deemed denied

without specific response.

19. Plaintiffs/Appellants incorporate herein by

reterence the averments set forth in greater detail in

Paragraph 18 hereof.

20. Plaintiffs/Appellants incorporate herein by

reference the averments set forth in greater detail in

Paragraph 18 hereof.

* On January 9, 2006.

5la

21. +=‘ Plaintiffs/Appellants incorporate herein by

reference the averments set forth in greater detail in

Paragraph 18 hereof.

22. Plaintiffs/Appellants incorporate herein by

reference the averments set forth in greater detail in

Paragraph 18 hereof.

23. Admitted only that the quotation is

correctly cited. Otherwise denied. To the contrary, the

quotation is incomplete because the Order in that

case granting Summary Judgment was different from

the Order granting Defendants/Appellees' Second

Motion for Summary Judgment here: there, the Court

granted the Motion and directed the Prothonotary

explicitly to enter Judgment on the Order. Here, the

trial court granted — in part, denied in part (and left

open certain parts of) — Defendants/Appellees'

Second Motion for Summary Judgment, and the

Order here (unlike the Order in Progressive Home

Fed. Say. & Loan v. Kocak, supra) failed to direct the

Prothonotary to enter Judgment. In Progressive, the

Court ruled that it was because Judgment was

explicitly entered by the specific statement in the

Order granting the Summary Judgment Motion that

the case did not fall within the Pa. R.C.P. 227.4(2)

category of Orders where relief was granted but

Judgment was not entered (which Orders get reduced

to Judgment by the filing of a Praecipe for Judgment):

"The trial court's order docketed on July 8,

1985 in this case stated: ".. . it is hereby

ORDERED that the Plaintiffs Motion is

granted and Summary Judgment is entered....

"This order was final and appealable, and

appellant had to file an appeal, if at all, within

30 days of this order. Because the order stated

that "judgment is entered" it was entirely

unnecessary for appellee to praecipe for

judgment, as it did on July 17, 1985. Once the

trial court's order entering judgment was filed

on July 8, 1985, judgment was entered. The

52a

subsequent praecipe for judgment was a

meaningless act because the judgment had

already been entered. See: Pa. R.C.P. 227.4(2)

(the prothonotary shail enter judgment on

praecipe of a party when the court itself does

not enter judgment) (emphasis added)."

Progressive Home Fed. Say. & Loan v. Kocak,

359 Pa. Super. 120, 518 A. 2d 808 (1986).

24. The language quoted is mere dictum in the

Gartland case because the Notice of Appeal was filed

timely with reference to the Order granting Summary

Judgment which, in that case, specifically entered

Judgment:

“We corrected the caption to reflect that this is

an appeal from a judgment rather than an

order. The order dated April 24, 2003 entered

summary judgment. Since the order entered

judgment on all claims and for all parties, it

was immediately appealable and judgment did

not need to be later entered by praecipe,

although it was." Gartland v. Rosenthal, Pa.

Super. , 850 A. 2d 671 (2003), footnote 1.

(Emphasis added.)

In this respect, the Order cited in Gartland appears

to be akin to the Order in Progressive: an Order

which not only grants the Summary Judgment

Motion but also enters Judgment. Progressive

distinguished that case from the case where the trial

court grants the Motion for Summary Judgment but

does not specifically enter Judgment. In the latter

instance, per the Progressive Court, the Order is

governed by Pa. R.C.P. 227.4(2), where relief is

granted, but Judgment is not entered until the filing

of the Praecipe for Entry of Judgment. 359 Pa. Super.

120, 518 A. 2d 808. The instant case is different in

53a

that here, unlike the situation in Progressive, relief

was granted but the Order doing so did not direct the

Prothonotary to enter Judgment; this led to the

subsequent filing of a Praecipe for Judgment, thereby

satisfying the language quoted above from the

decision in the Progressive Home Fed. Say. & Loan,

supra case. Per these cases, the timing of the appeal

herein is timely, and jurisdiction in this Court

attaches.

25. Denied for the reasons set forth in greater

detail in Paragraphs 18-24 hereof, which are

incorporated herein by reference.

26. Denied for the reasons set forth in greater

detail in Paragraphs 18-24 hereof, which are

incorporated herein by reference.

27. Denied. To the contrary,

Plaintiffs/Appellants' appeal herein is timely, and this

Court's jurisdiction attaches. The Cresswell case,

cited by Defendants/Appellees does not govern here

because it is a declaratory judgment action, and

because, under the Declaratory Judgment Act (42 Pa.

C.S. §7532), Court declarations concerning the rights

of the parties can have the "force and effect of a final

judgment or decree," giving rise to the circumstance

that Orders in declaratory judgment actions can be

final orders when, in other actions, such Orders

would be interlocutory in nature. Nationwide Mutual

Ins. Co. v. Wickett, 563 Pa. 595, 763 A. 2d 813 (2002);

Chalkey v. Roush, 569 Pa. 462, 805 A. 2d 491 (2002).

Accordingly, those cases do not — in the circumstances

of this case — contradict the Court's holding in

Progressive Mutual Ins. Co., supra.

New Matter

28. This appeal and this Motion to Quash

present the Court the opportunity to address those

objectives of minimizing protracted litigation and

avoiding piecemeal appeals which were the

foundation of the amendments issued in the past

54a

decade to Pennsylvania Rule of Appellate Procedure

341. McKinney v. Albright, 429 Pa. Super. 440, 632 A.

2d 937 (1993); Rivera v. Carbon County Tax Claim

Bureau, Pa. Cmwith. , 857 A. 2d 208 (2004).

29. This case is an old case (filed in 1993,

concerning events occurring in1986), and this appeal

to the Superior Court is the second such appeal

herein. The case is a case which has not yet been

permitted to proceed to trial, and it is also a case

which has been the subject, in the Opinion of the

Superior Court issued herein on February 16, 2004°,

of the unusual directive that the matter be assigned

to a different Judge upon remand than the Judge who

administered the case in proceedings leading up to

the First Motion for Summary Judgment. Opinion of

the Superior Court in Canoe Manufacturing Co., Inc.,

et al. v. Joseph Jones, Esq., et al., 693 MDA 2003,

February 16, 2004. Accordingly, this case is a "poster

child" for the protracted litigation, piecemeal appeal

case, and Plaintiffs/Appellants urge the Court to

address those issues herein.

30. This case had occasion to come before this

Court in connection with Defendants/Appellees'

Second Motion for Summary Judgment. The first

Summary Judgment Motion, raising issues of the

statute of limitations, alleged release and res

judicata/collateral estoppel (due to a federal court

case), was granted by the trial court on the sole

ground of the statute of limitations on December 22,

2000. Plaintiffs/Appellants successfully appealed that

ruling, and —- after an unsuccessful Petition for

Allowance of Appeal — the matter was remanded in

late 1994 to the Court of Common Pleas for

Schuylkill County, where it had originated.

> In that opinion, the Superior Court reversed the ruling of the Court of

Common Pleas granting summary judgment and remanded the case for trial.

55a

31. Defendants/Appellees filed a Second

Motion for Summary Judgment, and in it they

asserted three new grounds for Summary Judgment:

that ellegedly a certain bank letter of March 31, 1986

was not a contractual "commitment letter" but an

unenforceable “agreement to agree," as a result of

which Plaintiffs’ causes of action for attorney breach

of fiduciary duty and/or professional malpractice

should therefore be dismissed; the doctrine of merger;

and the preclusion of Plaintiffs/Appellants' various

causes of action (both ss to Canoe Manufacturing Co.,

Inc. and as to those of its President, M. Robert

Ullman) due to the final decree issued in the Canoe

bankruptcy proceeding. Further, Defendants/

Appellees reasserted the open claims for summary

judgment which had been raised in their First Motion

for Summary Judgment, but which had not been

ruled upon the first time around. Opinion of the

Court of Common Pleas for Schuylkill County

granting Defendants' Second Motion for Summary

Judgment, dated December 30, 2005, p. 2.

32. However, in granting the Defendants/

Appellees' Second Motion for Summary Judgment,

the Court neglected to rule upon the release and res

judicata/collateral estoppel claims for summary

judgment, leaving them open to be renewed again, if

Plaintiffs/Appellants should succeed in this appeal.

Opinion of the Court of Common Pleas for Schuylkill

County granting Defendants’ Second Motion for

Summary Judgment, dated December 30, 2005, p. 2.

Exhibit "A" hereto is a true and correct copy of the

Opinion and Order of the Court of Common Pleas for

Schuylkill County, dated December 30, 2005.

33. By Praecipe dated January 9, 2006,

Judgment was entered against Plaintiffs and in favor

of Defendants. A true and correct copy of this

document is attached hereto, incorporated herein by

reference and marked Exhibit "B."

56a

34. Plaintiffs/Appellants moved for

Reconsideration asking the Court reconsider its

entire ruling; at the minimum, Plaintiffs/Appellants

requested the Court to at least rule upon the

still-open claims for summary judgment.

35. Reconsideration not having been granted,

Plaintiffs/Appellants appealed from the Judgment

entered on January 9, 2006, and they raised two

issues in addition to their challenge to the Order

granting the Second Motion for Summary Judgment:

whether the Court violated Pa. R.C.P. 1035.2's

prohibition against “unreasonably delaying" trial

when the Court denied Plaintiffs/Appellants' Motion

to Strike the Second Motion for Summary Judgment

on the grounds that the case was already too old, and

that Defendants suffered no prejudice because they

could still present all of these defenses at trial.; and

whether, in view of the Court's apparent desire to

extend the Summary Judgment process to delay trial

until the parties had suffered irreparable damage

through the passage of time, Plaintiffs/ Appellants

could receive a fair trial in Schuylkill County, given

the prominence of the Defendants in that County.

36. Plaintiffs/Appellants filed their Notice of

Appeal on February 7, 2006, within thirty (30) days

from the date of the Judgment entered on January 9,

2006.

37. Plaintiffs appealed from the Judgment of

January 9, 2006, and they found the Order of

December 30, 2005 granting the Motion for Summary

Judgment to be an Order granting relief, but which

"does not itself enter judgment or order the

Prothonotary to do so" (Rule 227.4(2) of the

Pennsylvania Rules of Civil Procedure), for three

reasons:

(a) The Order granted relief but did not

explicitly enter Judgment or order the Prothonotary

to do so, thereby coming within the explicit terms of

57a

Pa. R.C.P. 227.4(2);

(b) The Order of December 30, 2005,

because it left open and undecided two of Defendants'

claims for summary judgment (release and res

judicata/collateral estoppel), was not an Order which

"disposes of all claims and of all parties," as per the

language of Rule 341(b)(1) of the Pennsylvania Rules

of Appellate Procedure; and

v. TEDCO Corp., the actual entry of judgment is

itself a jurisdictional matter:

"However, the law of this Commonwealth has

long recognized that the entry of judgment is a

jurisdictional matter. "The requirement that

judgment be docketed is jurisdictional."

Murphy v. Brong, 321 Pa. Super. 340, 343, 468

A.2d 509, 511 (1983); Hilliard v. Hilliard, 295

Pa. Super. 317, 319, 441 A.2d 1251, 1252

(1982); Unterberger v. Life Assurance Co. of

Pennsylvania, 286 Pa. Super. 469, 470, 429

A.2d 34, 35 (1981); Gadbois v. Leb-Co Builders,

Inc., 290 Pa. Super. 523, 525, 434 A.2d 1267,

1268 (1981); Coren v. DiDomenico, 291 Pa.

Super. 331, 333, 435 A.2d 1252, 1253 (1981).

Moreover, "the entry of judgment is a

prerequisite to our exercise of jurisdiction."

Davanzo v. Finelli, 293 Pa. Super. 70, 72, 437

A.2d 995, 996 (1981); Firestone Tire & Rubber

Co. v. W.P. Cooke, Inc., 289 Pa. Super. 333,

334, 433 A.2d 93 (1981); Slaseman v. Myers,

285 Pa. Super. 167, 168, 427 A.2d 165, 166

(1981). See also 2 Goodrich-Amram 2d §

1038(b):1, at 501 (1976)." Johnson the Florist,

Inc. v. TEDCO Corporation, 441 Pa. Super.

281, 657 A. 2d 511 (1995).

38. Certain specified types of cases have

special characteristics which render holdings

regarding treatment of summary judgment orders

58a

unique to those types of cases and thus not of general

application:

(a) Asbestos cases: in these cases, under

the specific procedures applicable to asbestos cases,

reverse bifurcation was often permitted, as well as

the renewal of summary judgment motions without

specific identification of the Motion as a Motion for

Summary Judgment, and at a point in time where the

case had sometimes years of future proceedings

before it. See Tohan v. Owens-Corning Fiberglas

Corp., Pa. Super. , 696 A. 2d 1 195 (1997). Since the

procedural context established by those procedures is

so different from that of the ordinary civil case,

determinations of

appealability in that context are not

persuasive in the more general context.

(b) Declaratory Judgment cases: since, by

statute, a Court's pronouncements in a declaratory

judgment action concerning the rights of the parties

are often held to constitute a final order, 42 Pa. C.S. :

§7532, final orders can appear at unusual times in

declaratory judgment actions. Cresswell v.

Penna. National Mutual Insurance Co., Pa. Super.

, 820 A. 2d 172 (2003). Accordingly, those

holdings relating to issues of appealability may not be

of general application.

custody may entail both a declaration of custodial

rights and a factual investigation concerning

the interests of the child, an order declaring custodial

rights is not final until the

investigation concerning the child's interests is

concluded, and it is not final unless the Court intends

the order to be final. G.B.v. M.M.B., 448 Pa. Super.

133, 670 A. 2d 714 (1996). Hence, rules applicable to

such cases are of limited applicability in the general

context.

39. While the Court will often look to whether

59a

or not the Order in question “puts the appellant out of

court," that principle is invoked only when the order

at issue does not fit within the specific definitions set

forth in the applicable rules. 16 Standard

Pennsylvania Practice 2d §86:15. Where, as here, the

Order in question fits explicitly within the confines of

Rules 227.4(2) of the Pennsylvania Rules of Civil

Procedure and 341(b)(1) of the Pennsylvania Rules of

Appellate Procedure, the rules control, and the Courts

do not resort to the general principle. See 16

Standard Pennsylvania Practice 2d §86:15.

40. Central to determination of this issue is

the need to address the abusive practice by the trial

court of deciding these summary judgment motions

piecemeal, and of leaving undecided one issue after

another, so that the parties face an endless round of

piecemeal appeals which delay bringing the matter to

trial interminably. The parties have already suffered

prejudice through the passage of time herein as a

result of this practice

(a) The Defendants/Appellants'

professional liability insurer has been adjudged

insolvent and has gone into reorganization in the

State of New Hampshire, thereby prejudicing the

parties through the passage of time herein;

(b) The chief witnesses (Joseph Jones, Esq.

and M. Robert Uliman) are at least 80 and 76

respectively, and Mr. Ullman has recently suffered a

heart attack. The passage of time, excessive at this

point, must necessarily dim the memories of

witnesses and prejudice the parties as a matter of

law.

parties are entitled to a trial, it should occur within

their reasonable life expectancy.

41. This case involves serious allegations of

professional misfeasance and malpractice and breach

of fiduciary duty, including the following:

60a

(a) The failure of the attorneys to advise

their corporate clients that the final loan documents

the clients were to execute did not conform to the

terms of the earlier "commitment letter" in at least

two important respects: the clients would not receive

promised and necessary new (or additional) financing

at closing; and the clients would be voluntarily

restructuring the company's loan portfolio and

putting up additional collateral (including personal

guarantees on the Ullman residence and the pledge of

CDs by Mr. Ullman's mother-in-law) but they would

not be getting in return the additional financing

which was the _ bargained-for exchange;

(b) The lender (Meridian Bank and its

subsidiary Meridian Commercial! Credit Corp.

("MCCC")) determined not to extend new financing

because of a need to resolve certain FDIC regulatory

issues related to guarantees of MCCC loans,

including MCCC's loan to Canoe Manufacturing Co.,

Inc.;

Appellants, that Joseph Jones, Esq. was a member of

Meridian Bank's Board of Directors while he was

representing them in their attempt to borrow

additional funds from a Meridian subsidiary; that,

when Meridian Bank determined not to extend new

financing to Canoe, Mr. Jones never advised

Plaintiffs/Appellants that he was thereby placed in a

position of irreconcilable conflict of interest; and that

instead of protecting their clients’ interests, the

attorney Defendants/Appellants in conducting

themselves as they did herein acted to prefer the

commercially valuable interest of Meridian Bank

(through Mr. Jones's position on its Board of

Directors) to the interest of Canoe Manufacturing Co.,

Inc., a one-time client which was paying the

attorneys’ bills; and

(d) The attorney defendants’ conduct in

6la

withholding the "commitment letter" and all copies

thereof from their clients until more than five (5)

years had elapsed after the closing on the loan

restructuring and the signing of the fatal documents,

during which time Canoe Manufacturing Co., Inc.

failed, and much of the additional collateral was

foreclosed upon or lost. In light of these matters,

Plaintiffs/Appellants urge the Court to consider the

conduct of the Court, and whether it in effect aided

and abetted the Defendant attorneys through the

-dilatory administration of these Motions for

Summary Judgment, whereby the repeated renewal

of these claims for summary judgment, years apart,

was permitted by the Court's apparently considered

approach of ruling on only some, but not all, of the

summary judgment claims before it.

42. Such conduct by the Court encourages

protracted litigation, and it encourages piecemeal

appeals, thereby undermining the administration of

justice and burdening the appellate courts.

Accordingly, Plaintiffs/Appellants urge this Court to

evaluate the Orders at issue herein within the context

of the apparent decision to leave open one or more

claims by Defendants for summary judgment

whenever the Court below should determine to decide

one of these repeated Motions for Summary

Judgment.

43. Acknowledging that the issues raised in

this Motion to Quash are jurisdictional issues,

Plaintiffs/Appellants nevertheless urge the Court to

so read the applicable rules as to render the one

consistent with the other, thereby giving proper

effect to both the requirements of Rule 227.4(2) of the

Rules of Civil Procedure (relating to Orders granting

relief but not specifically entering Judgment) and

those of Rule 341(b)(1) of the Rules of Appellate

Procedure (defining as final those orders which close

out all of the claims raised on application for

62a

summary judgment, as well as "disposing" of all

parties®), Since quashing an appeal is a draconian,

but procedural (i.e., not on the merits), remedy, the

law favors appeals as it does likewise the reading of

two applicable procedural rules in such as fashion as

to be consistent the one with the other. See First

Bank v. Steinman, 353 Pa. Super. 8, 384 A. 2d

949 (1978).

44. Plaintiffs/Appellants urge that this Motion

to Quash, together with their Answer thereto, be

referred in the first instance to the Motions Panel for

review.

WHEREFORE, Canoe Manufacturing Co., Inc.

and M. Robert Ullman, Plaintiffs and Appellants

herein urge this Honorable Court to deny this Motion

to Quash.

LAW OFFICE OF JOHN P.

McKELLIGOTT, Esq.

By:/S/

§ In 1997, the Supreme Court amended Pa. R.A.P. 341 to define a

final order as one which “disposes of all claims and of all parties,"

changing the prior language of the rule. Previously, that Rule

defined as final an order which "disposes of all claims or all

parties." (Emphasis added.) Order of the Pennsylvania Supreme

Court of July 7, 1997 amending various appellate rules, including

Rule 341. If simply dismissing all parties from court was all that

was required for a final order, without at least ruling upon all of

the claims raised on summary judgment below, then there was no

need for this amendment to the Rules of Appellate

Procedure. Put another way, if this Court is to give effect to the

change in language explicitly adopted by the Supreme Court in

1997, then this Court must recognize that an Order granting a

Motion for Summary Judgment does not become final by alone

dismissing all parties from the case while leaving undecided and

open one or more claims raised below in the summary judgment

proceedings.

63a

John P. McKelliott, Esq.

Attorney for

Plaintiffs/Appellants

Of counsel:

James P. Peters, Esq.

8 St. Albans Avenue — Upper Story

Newtown Square, PA 19073

(610) 353-8531

64a

In the

Superior Court of Pennsylvania

302 MDA 2006

CANOE MANUFACTURING COMPANY

and ROBERT ULLMAN,

Plaintiffs/Appellants

JOSEPH H. JONES, ESQUIRE and

WILLIAMSON, FRIEDBERG & JONES,

Defendants/Appellees

REPLY OF DEFENDANTS/APPELLEES, JOSEPH

H. JONES, ESQUIRE and WILLIAMSON,

FRIEDBERG & JONES, TO PLAINTIFFS'

RESPONSE TO DEFENDANTS' MOTION TO

QUASH PLAINTIFFS' APPEAL

I. INTRODUCTION

Defendants/Appellees, Joseph H. Jones, Esq., and

Williamson, Friedberg & Jones hereinafter

"defendants"), file this Reply to Plaintiffs' Answer to

Defendants’ Motion to Quash Plaintiffs' Appeal.

Plaintiffs’ 16-page Answer asserts clearly erroneous

arguments, interjects a number of irrelevant matters,

and presents an unnecessary and incorrect discussion

of the history of this case. While the following Reply

addresses plaintiffs' arguments to the extent

necessary, nothing in the Answer should be permitted

to obscure the straightforward issue of appellate

jurisdiction presented by defendants’ Motion to

Quash, namely, whether plaintiffs filed a timely

65a

appeal from the trial court's Order of December 30,

2005, which awarded summary judgment to

defendants and disposed of all remaining claims and

all remaining parties. Since the record establishes

beyond doubt that plaintiffs did not appeal the

December 30th Order until February 7, 2006, their

appeal was clearly untimely and this Court lacks

jurisdiction to proceed.

Il. REPLY ARGUMENT

A. Plaintiffs' Argument That The Order

Granting Summary Judgment Did Not Dispose

Of All "Claims" Because It Did Not Address Each

Basis On Which Defendants Sought Summary

Judgment Is Clearly Wrong

In opposing the defendants' Motion to Quash,

plaintiffs' primary argument is that the Order of

December 30, 2005, was not a final, appealable Order

because it did not dispose “of all claims and of all

parties," as required to constitute an appealable

Order under Pa.R.A.P. 341(b)(1). According to

plaintiffs, since the Order granted summary

judgment on only two of the bases urged by the

defendants, and since it left "un-ruled-upon" two

other bases urged by defendants, those remaining

bases were "claims" that survived summary

judgment. (Plaintiffs' Answer, p. 3, 114). Plaintiffs

present this curious argument as follows:

The Order of December 30, 2005, because it

left open and undecided two of Defendants'

claims for summary judgment (release and res

judicata/collateral estoppel), was not an Order

which “disposes of all claims and of all

parties," as per the language of Rule 341(b)1)

of the Pennsylvania Rules of Appellate

Procedure.

66a

(Plaintiffs' Answer, p. 10, {37(b); see also, p. 3, 114;

stating that "the Order of December 30, 2005,

granting summary judgment on one of the claims

asserted, and leaving open and un-ruled-upon two

additional claims for Summary Judgment, failed to

dispose of all claims as well as all parties.")(footnotes

omitted).

As these passages suggest, plaintiffs characterize

the various bases on which defendants sought

summary judgment as "claims" within the meaning of

Rule 341. Since these "claims" were not addressed by

the trial court, plaintiffs assert, the Order granting

summary judgment did not dispose "of all claims and

of all parties and it therefore could not have been a

final and appealable Order under Rule 341. This

assertion is clearly wrong because it confuses "claims"

with arguments. By requesting summary judgment

on different bases, defendants were not raising their

own claims; they were challenging the legal

sufficiency of plaintiffs' claims. A defendant does not

raise "claims" by requesting summary judgment.

Indeed, the rules of civil procedure recognize only

three types of "claims" by defendants: counterclaims

against plaintiffs (Pa.R.C.P. 1031); and cross-claims

and third party claims against other defendants

(Pa.R.C.P. 2252). Obviously, by requesting summary

judgment, defendants were making none of the types

cite, and defendants have not found, any legal

authority whatsoever for the argument that

defendants were asserting "claims" by requesting

summary judgment on various bases.

Moreover, Rule 341's reference to “all claims"

refers only to the types of claims recognized

elsewhere in the rules. Indeed, the Rule itself

specifically identifies the four types of claims that

may be resolved by a trial court: "a claim,

counterclaim, cross-claim, or third-party claim|[.]"

67a

Pa.R.C.P. 341(c)("When more than one claim for relief

is presented in an action, whether as a claim,

counterclaim, cross-claim, or third-party claim, the

trial court or other government unit may enter a final

order as to one or fewer than all of the claims[.}")

(emphasis added). Therefore, when the Rule states

that a final Order is any Order that "disposes of all

claims and of all parties," the "claims" to which the

Rule refers can only be claims, counterclaims,

cross-claims, or third-party claims. This is the only

way to read Rule 341 in a manner that is consistent

with the other rules defining the permissible types of

claims. Of course, this Court must construe

procedural rules involving the same subject as a

unified whole. See Pa.R.C.P. 131 (Rules in Para

Materia)("Rules in para materia shall be construed

together, if possible, as one rule or one chapter of

rules."). Since the remaining rules recognize only four

types of claims, this Court cannot construe Rule 341

in a manner that allows a fifth type of claim (i.e., a

defendant's request for summary judgment). Since

the Order of December 30, 2005, undeniably awarded

summary judgment and dismissed all of plaintiffs

claims, it was clearly final and appealable. See

Feidler v. Morris Coupling Co., 784 A.2d 812, 815 (Pa.

Super. 2001)("Since the order granting summary

judgment disposed of the entire matter, the order

itself was final and appealable.").

Putting aside the procedural rules and case law,

plaintiffs defy logic by arguing that defendants were

asserting "claims" when they requested summary

judgment on various bases. If plaintiffs are correct, no

trial court could enter a final Order dismissing

plaintiffs case until it addressed each and every

argument made by a defendant. If the court dismissed

the case on one basis alone, without addressing

others bases, the case would be stuck in a legal limbo:

a plaintiff's claims would be dismissed but he or she

68a

could not appeal until the trial court went back and

addressed every alternative argument made by

defendant. This Court cannot interpret Rule 341 to

sanction such an absurd and unworkable result. See

Pa.R.C.P. 128 (Presumptions in Ascertaining the

Intent of the Supreme Court)("In ascertaining the

intention of the Supreme Court in the promulgation

of a rule, the courts may be guided by the following

presumptions, among others: (1) That the Supreme

Court does not intend a result that is absurd,

impossible of execution or unreasonable[.|").

There is not, and has never been, a requirement

that a trial court respond to each and every argument

made by a party in support of its request for

summary judgment or other relief. Instead, where a

trial court grants summary judgment and dismisses

plaintiffs case on one basis, without addressing

additional bases, the Order is final and appealable.

See Wishnefsky v. Riley & Fanelli, P.C., 799 A.2d

827, 829 n. 2 (Pa. Super. 2002) (considering plaintiffs

appeal from the grant of summary judgment and

noting, "Because of its finding on this issue, the trial

court declined to address the remaining arguments

advanced by Appellee for the entry of summary

judgment."); and Naylor v. Township of Hellam, 773

A.2d 770, 777 (Pa. 2001)(noting that the trial court

had granted summary judgment on one basis but

declined to address defendant's remaining basis for

summary judgment). If plaintiffs' view of the law is

correct, the grants of summary judgment in these

cases were not appealable, but they clearly were. So

long as summary judgment is proper on one basis,

- neither a trial court nor an appellate court must

address the remaining bases offered by a party. See

e.g., Hoffman v. Sun Pipe Line Co., 575 A.2d 122 (Pa.

Super. 1990)("At the trial level, the court granted

appellee's motion [for summary judgment] on the

ground that appellants were not foreseeable plaintiffs

69a

without specifically ruling on the other issues.

Because of our disposition of appellants' first claim,

we need not address these alternative bases for

granting the motion.").'

For all of these reasons, this Court should

summarily reject plaintiffs’ argument that the trial

court's grant of summary judgment was not final

under Rule 341 because it did not address

each argument asserted by defendants.’

B. Contrary To Plaintiffs' Argument, An

Order Granting Summary Judgment As To All

Claims And All Parties Need Not Explicitly

Recite The Entry Of Judgment In Order To Be

Appealable

Of course, unlike their counterpart in this case, the plaintiffs in

Wishnefsky and Naylor appealed within thirty days after the

entry of summary judgment.

? Plaintiffs' argument that the award of summary judgment was

not final under Rule 341 leaves them with a problem: if the Order

was not final, why is their current appeal proper? Plaintiffs

attempt to answer this question with the strained argument that,

although the grant of summary judgment did not address the

defendants' remaining bases for summary judgment, the praecipe

for judgment somehow “disposed of" those bases. (See Plaintiffs’

Answer, p. 3; "[T]he Order which disposed of all claims as well as

all parties was the praecipe for Entry of Judgment{.]"). It is not

clear how the praecipe for judgment “disposed of the defendants'

remaining arguments, especially where the defendants

themselves filed the praecipe. As this Court has held, the filing of

a praecipe for judgment after the entry of summary judgment is

“a meaningless act[.]" See Progressive Home Fed. Say. & Loan v.

Kocak, 518 A.2d 808, 809 (Pa. Super. 1986)("Once the trial court's

order entering [summary] judgment was filed on July 8, 1985,

judgment was entered. The subsequent praecipe for judgment was

a meaningless act because the judgment had already been

entered."). As a result, plaintiffs are wrong in arguing that the

praecipe validated their late appeal by somehow disposing of the

defendants’ remaining arguments.

70a

Plaintiffs next argue that an Order disposing of all

claims and all parties is not fina! and appealable

unless it explicitly states that judgment is entered.

(Plaintiffs' Answer, pp. 5-6,1123-24). Thus, plaintiffs

maintain, the Order of December 30, 2005 was not

appealable because it “failed to direct the

Prothonotary to enter Judgment." (Plaintiffs' Answer,

p. 5, 123). Plaintiffs cite no authority f-_ their novel

argument that an Order granting summary judgment

is appealable only if it separately recites that

judgment is entered.

As its name suggests, a summary judgment is a

judgment and no separate entry of judgment is

required. Indeed, as our Supreme Court has

recognized, the rules of civil procedure require the

“entry” of summary judgment where the movant is

entitled to judgment as a matter of law. See e.g.,

Scalice v. Pa. Emples. Benefit Trust Fund, 883 A.2d

429 , 434-435 (Pa. 2005), citing Pa.R.C.P. 1035.2(1)

("We begin with the Pennsylvania Rules of Civil

Procedure that govern summary judgment. The Rules

instruct in relevant part that the court shall enter

judgment whenever there is no genuine issue of any

material fact|.]")(emphasis added). Since a summary

judgment is itself a judgment, our courts consistently

refer to the entry of summary judgment. See e.g.,

Mullin v. DOT, 870 A.2d 773, 776 (Pa. 2005)

(remanding with instructions for the trial court to

"enter summary judgment” for the defendant);

Phillips v. Cricket Lighters, 841 A.2d 1000, 1004 (Pa.

2003)(addressing the trial court's “entry of summary

judgment."); and Tohan v. Owens-Corning Fiberglas

Corp., 696 A.2d 1195, 1198 (Pa. Super. 1997), appeal

denied, 718 A.2d 786 (Pa. 1998)("Post-trial motions

are not allowed following the entry of summary

judgment, as it is the entry of judgment which

initiates the running of the appeal period.")

(emphasis added). As these cases suggest, plaintiffs

Tla

are mistaken in arguing that the grant of summary

judgment does not enter judgment unless is

specifically “direct[s] the Prothonotary to enter

Judgment." (Plaintiffs’ Answer, p. 5, 123).

Since the grant of summary judgment clearly

constitutes the entry of judgment, no separate

judgment, or recitation that judgment is entered, is

required. Instead, "the order itself" is immediately

appealable. See Feidler v. Morris Coupling Co., 784

A.2d 812, 815 (Pa. Super. 2001)("Since the order

granting summary judgment disposed of the entire

matter, the order itself was final and appealable.")

(emphasis added); see also, Gartland v. Rosenthal,

850 A.2d 671, 671 n.1 (Pa. Super. 2004)("Since the

order entered [summary] judgment on all claims and

for all parties, it was immediately appealable and

judgment did not need to be later entered[.]"). While

plaintiff posits that the Order in Gartland may have

specifically recited the entry of judgment, there is no

support for this speculation. Instead, the Superior

Court's Opinion suggests that the entry of summary

judgment itself “entered judgment." Id. ("The order

dated April 24, 2003 entered summary judgment.

Since the order entered judgment on all claims and

for all parties, it was immediately appealable[.]").

Nowhere does the Superior Court suggest that the

Order was only appealable because it also separately

recited the entry of judgment.®

3 Plaintiffs also claim that the quoted discussion in Gartland was

“mere dictum.” (Plaintiffs' Answer, p. 6, 124). This is not true.

Indeed, as the Superior Court made clear, it amended the caption

of its prior Opinion to clarify that the appeal was taken from a

judgment, not an Order. Gartland, 850 A.2d at 671 n.1. Since the

quoted language was important enough for this Court to amend

its prior Opinion and clarify the basis of the appellant's appeal, it

was directly relevant to the Court's resolution of the case. The

quoted language, which was unanimously endorsed by the

three-judge panel, was not dicta. Black's Law Dictionary 454 (6th

72a

Finally, plaintiffs attempt to distinguish

Progressive Home Fed. Say. & Loan v. Kocak, 518

A.2d 808, 809 (Pa. Super. 1986)(“Once the trial court's

order entering [summary] judgment was filed on July

8, 1985, judgment was entered. The subsequent

praecipe for judgment was a meaningless act because

the judgment had already been entered."). According

to plaintiffs, the Order in Progressive was different

from the Order in this case because it "directed the

Prothonotary explicitly to enter Judgment on the

Order." (Plaintiffs' Answer, p. 5, 123). This is false.

The Order in Progressive merely stated that

"Summary Judgment is entered|[.]" Id. at 808.

Nowhere did the Order direct the Prothonotary to do

anything. Such direction was unnecessary because,

again, the grant of summary judgment itself

constituted the entry of judgment. Since the Order

itself entered judgment, "it was entirely unnecessary

for appellee to praecipe for judgment|.]" Id.

Progressive refutes, rather than supports, plaintiffs’

claim that they could delay appealing until the

praecipe to enter judgment was filed.‘

For these reasons, this Court should reject

plaintiffs' claim that an Order granting summary

judgment as to all claims and all parties in not

appealable unless the Order explicitly "direct{s] the

ed. 1990)(defining "dicta" as “opinions of a judge which do not

embody the resolution or determination of the specific case before

the court. Expressions in court's opinion which go beyond the

facts before [the] court and therefore are individual views of {the]

author of [the] opinion and not binding in subsequent cases as

legal precedent.").

‘ Plaintiffs’ repeated references to Pa.R.C.P. 227.4(2), which

provides that the Prothonotary shall enter judgment on praecipe

of a party when the court itself does not enter judgment, is

unavailing. Since the trial court entered judgment by awarding

summary judgment as to all claims and all parties, Rule 227.4(2)

is clearly inapplicable.

73a

Prothonotary to enter Judgment." (Plaintiffs' Answer,

p. 5, 123).

{C]. Plaintiffs' Attack On The Trial Judge

And Interjection of Equitable Considerations

Are Factually Erroneous and Legally Irrelevant

To The Question of Appellate Jurisdiction

Presented By Defendants' Motion to Quash

The "New Matter" in plaintiffs' Answer consists of

a scandalous attack on the trial judge and an

extremely self-serving and misleading discussion of

plaintiffs' view of the "merits" of the case. According

to plaintiffs, the trial judge "aided and abetted the

Defendant attorneys through the dilatory

administration of justice," engaged in an "apparently

considered approach" to “undermin|[e] the

administration of justice," and conducted an “abusive |

practice" of deciding issues piecemeal. (Plaintiffs'

Answer, pp. 13, 15, 19[40-42). Plaintiffs further argue

that this Court should resolve defendants’ Motion to

Quash based upon "objectives of minimizing

protracted litigation and avoiding piecemeal

appeals[.]" (Id., p. 7, 128).

Given the narrow issue of appellate jurisdiction

presented by their Motion, defendants will resist the

urge to respond in detail to plaintiffs' attack on the

esteemed trial judge and their improper attempt to

interject their own self-serving view of this case.°

Suffice it to say that, as the trial court has found,

plaintiffs' view of this case has no basis in law or fact.

> Defendants will respond to plaintiffs' claims if and when

briefing on the merits is required. However, it must be noted that

plaintiffs' complaints about "protracted litigation" are especially

ironic because plaintiffs' own litigation tactics, including the filing

of no less than three appeals, have consistently delayed the

resolution of this case.

74a

whether they ti~ ely appealed from the December

dismissing their case entirely. A timely appeal is a

prerequisite to this Court's exercise of jurisdiction.

See In re Trust Under Deed of Green, 779

A.2d 1152, 1157 (Pa. Super. 2001), appeal denied, 805

A.2d 524 (Pa. 2002)("Since the instant notice of

appeal was filed beyond the thirty-day time limit

within which to file an appeall[,] . .. we must conclude

that we lack jurisdiction to consider the appeal.").

Since plaintiffs failed to timely appeal, this Court

lacks jurisdiction and it cannot consider alleged

equitable factors to create jurisdiction where none

exists. Id. ("We order the appeal quashed... .

Appellant has failed to comply with the law of

appellate procedure and we cannot find that

jurisdiction exists where it clearly does not."). In

other words, unless plaintiffs’ appeal was timely, this

Court has no legal authority to consider the appeal.

Consequently, even if the trial judge has engaged in

improper conduct (which he certainly has not), and

even if plaintiffs' complaints about "protracted

litigation" and "piecemeal appeals" are accurate

(which they certainly are not), this Court cdnnot

consider them. Plaintiffs simply cannot be allowed to

divert attention from their clear failure to file a

timely appeal.

Ill. CONCLUSION

Based on the foregoing, Defendants/Appellees,

Joseph H. Jones, Esq., and Williamson, Friedberg &

Jones, respectfully move this Honorable Court to

quash plaintiffs’ appeal.

MARSHALL, DENNEHEY,

WARNER, COLEMAN & GOGGIN

75a

John J. Hare, Esq.

Pa. 1.D. #70419

1845 Walnut Street

Philadelphia, PA 19103

(215) 575-2609

Alan E. Johnson, Esq.

Pa. I.D. #89690

2900 U.S. Steel Tower

600 Grant Street

Pittsburgh, PA 15219

(412) 803-1140

Attorneys for

Defendants/Appellees,

Joseph H. Jones, Esq., and

Williamson, Friedberg &

Jones

76a

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Reply in Support of Motion to Quash

Plaintiffs' Appeal has been served upon counse] listed

below via U.S. First Class Mail, postage prepaid, this

date:

Date: 3-21-06

John P. McKelligott, Esquire

James P. Peters, Esquire

8 Saint Albans Avenue

Newtown Square, PA 19073

Attorney for Plaintiffs

MARSHALL, DENNEHEY,

WARNER, COLEMAN &

GOGGIN,

BY:

John J. Hare, Esq.

Pa. I.D. #70419

1845 Walnut Street

Philadelphia, PA 19103

(215) 575-2609

Alan E. Johnson, Esq.

Pa. L.D. #89690

2900 U.S. Steel Tower

600 Grant Street

Pittsburgh, PA 15219

(412) 803-1140

Attorneys for

Defendants/Appellees,

Joseph H. Jones, Esq.,

and Williamson,

Friedberg & Jones

77a

CANOE MANUFACTURING: IN THE SUPERIOR

CO., INC. et al. : COURT OF

PENNSYLVANIA

Vv.

JOSEPH H. JONES,

ESQUIRE, et al. : NO. 302 MDA 2006

: (C.P. SCHUYLKILL

: COUNTY S-759-93)

ORDER

The court hereby GRANTS the motion to quash.

PER CURIAM

Date: APR 12 2006

78a

IN THE

SUPERIOR COURT OF PENNSYLVANIA

No. 302 MDA 2006

CANOE MANUFACTURING COMPANY, INC.

and M. ROBERT ULLMAN,

Appellants

US.

JOSEPH H. JONES, ESQUIRE and

WILLIAMSON, FRIEDBERG & JONES,

Appellees

APPELLANTS’ APPLICATION FOR

REARGUMENT BEFORE A COURT EN BANC OF

ORDER IMPROVIDENTLY QUASHING APPEAL

Application for Reargument Before a Court

En Banc of the Order Entered April 12, 2006

Quashing the Appeal from the Order of the

Court of Common Pleas of Schuylkill County,

Civil Division, Entered January 9, 2006

at No. S-759-1993

John P. McKelligott, Joseph R. Viola,

Esquire Esquire

Atty. Reg. No. 16221 Atty. Reg. No. 35362

James P. Peters, Esquire 1900 Spruce Street

Atty. Reg. No. 38682 Philadelphia, PA 19103

79a

8 St. Albans Avenue (215) 893-0700

Newtown Square, PA 19073

(610) 353-8531

Attorneys for Appellants Canoe Manufacturing

Co., Inc., and M. Robert Uliman

S0a

TABLE OF CONTENTS

TABLE OF CITATIONS ........ccccccccccces ii

REFERENCE TO ORDER IN QUESTION ...... 1

SPECIFICATION OF POINTS OF LAW AND

FACT MISAPPREHENDED BY HE PANEL OR

MOTIONS JUDGE ...... ccc cece cece cc cecees 2

STATEMENT OF REASONS FOR ALLOWANCE

OF REARGUMENT BEFORE A COURT EN

8la

TABLE OF CITATIONS

CASES

Commonwealth v. Dorman, 272 Pa. Super. 149, 414

A.2d 713

FPPC PCC ee ee re pee ee eke 7

Frazier v. City of Phitadetphia, 557 Pa. 618, 735 A.2d

EE n.d o ARO OR Renee h ee eee ee 6, 7

Gartland v. Rosenthal, 850 A.2

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