# Petition for Writ of Certiorari — Canoe Manufacturing Manufacturing Manufacturing Co., Inc. v. Jones (No. 06-1059) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2107%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## Text 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 BY 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. -ii- 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. -ill- 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 a. 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 -3- 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. -4- 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 -5- 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 -7- 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). ee $- 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 -10- 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 et 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 4 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 la 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 * * * * (c) The Supreme Court shall have the power to 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 2a 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 3a 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). 4a 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 5a 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. 6a 236(b). (c) Emergency appeals. Notwithstanding Subdivisions (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. 7a * * * * (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. (c) Failure to give the notice or when a judgment by 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 8a 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 9a 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 02/07/2006 02/07/2006 02/07/2006 02/06/2006 0/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006 01/18/2006 01/18/2006 01/18/2006 01/10/2006 01/09/2006 01/09/2006 01/09/2006 12/20/2005 12/30/2005 09/26/2005 09/26/2005 09/26/2005 09/26/2005 09/07/2005 09/07/2005 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 07/13/2005 07/11/2005 07/11/2005 06/27/2005 06/16/2005 06/16/2005 06/15/2005 06/15/2005 06/15/2005 06/15/2005 06/14/2005 06/14/2005 06/14/2005 06/14/2005 05/19/2005 05/19/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 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 v. 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 v. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2107%3A1. Public record. Not legal advice.