Young v. S. B. Conrad, Inc.

216 A.3d 267

Christopher YOUNG, Appellant

v.S. B. CONRAD, INC., Shelly Enterprises US LBM, LLC, J & S Electrical Contractors, Inc. and William C. Fischer Plumbing & Heating, Inc.

v.RRR Contractors, Inc.

No. 2501 EDA 2018

Superior Court of Pennsylvania.

Argued April 9, 2019

Filed July 25, 2019

Daniel J. Siegel, Havertown, for appellant.

Frederick T. Lachat, Jr., Philadelphia, for S.B. Conrad, appellee.

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI^* , J.

OPINION BY KUNSELMAN, J.:

I. Introduction

In this negligence action, Plaintiff Christopher Young appeals from an order dismissing his claim against Defendant S.B. Conrad, Inc. Prior to seating a jury, the trial court determined Mr. Young was a statutory employee of S.B. Conrad under the Pennsylvania Workman's Compensation Act¹ ("the Workers' Comp. Act"), as a matter of law. Thus, it held that S.B. Conrad was immune from Mr. Young's lawsuit and granted summary judgment in favor of S.B. Conrad on August 21, 2017. However, the trial court memorialized its order on a trial worksheet that purported to enter a compulsory non-suit rather than summary judgment.

Instead of immediately appealing as he could have, Mr. Young relied on the trial court's mischaracterization of its order as an entry of non-suit and filed a post-trial motion to remove it. Because his reliance was reasonable, we have jurisdiction over his appeal, even though it came in nearly a year after the grant of summary judgment. We find, however, that Mr. Young failed to preserve any of his appellate issues. Thus, we affirm.

II. Factual and Procedural Background

The case's facts are largely irrelevant, because our disposition rests on procedural grounds. Briefly, Mr. Young alleges he was an employee of RRR Contractors. He also claims S.B. Conrad, Inc. contracted with RRR Contractors for a building project. RRR Contractors assigned Mr. Young to work on that project. In the course of his duties, Mr. Young fell two stories, suffered severe and permanent injuries, and sued.

The week before trial, S.B. Conrad filed a motion for non-suit, claiming to be Mr. Young's statutory employer under the Workers' Comp. Act, and it asked the trial court to bifurcate that issue from the rest of the case. On August 21, 2017, the trial court granted its motion, which the trial court said it was treating as a motion for summary judgment. As the court explained without objection from Mr. Young, "I think the preliminary step is to rule on the submission of statutory employment, which I am looking at it as a motion for summary judgement, although I filed it as a pre-trial motion for bifurcation." N.T., 8/21/17, at 3.

There was a lengthy oral argument, where both sides treated the employment-status question as one of law for the court. See id. at 3-19. Indeed, Mr. Young's attorney conceded that the issue was one of law:

THE COURT: I believe this is a decision, not something that needed to be decided by a jury. That it deals with law.

PLAINTIFF'S COUNSEL: I agree with that.

Id. at 21.

After the trial court ruled that Mr. Young was a statutory employee of S.B. Conrad, plaintiff's counsel tried, for the first, to interpose a procedural issue. His discussion with the trial court went as follows:

PLAINTIFF'S COUNSEL: Your Honor, I just, for the record, I need to put this on the record to make sure the Superior Court doesn't say we don't have a record.

S.B. Conrad failed to file a Summary Judgment Motion, which I would have then had 30 days to produce evidence as to why they have not met their burden. On Friday and today, S.B. Conrad renewed the legal argument that they are immune, not in the form of Summary Judgment, but in a motion in limine . I then had the afternoon of Friday to supply the Court with whatever –

THE COURT: And you had all weekend.

PLAINTIFF'S COUNSEL: I apologize. I thought you wanted me to respond by the end of the day Friday.

THE COURT: I never directed you to do that. I asked this question in the conference room, I said : Do I have everything in front of me that I need to make a ruling? And you specifically stated that I did.

You said : [All the evidence that I needed was in the documents that you] provided and based on that representation I came in this morning with the understanding that all sides were on the same page. That based on the writing I was given, that I could proceed forward.

[Defense counsel] said at that time, if you come in Court on Monday morning and you think you need more, I will have people from S.B. Conrad to supplement anything that I have if you feel that need to.

Id. at 20 (emphasis in original).

Plaintiff's counsel did not contest the trial court's recollection of the off-the-record conversation in the conference room, place an objection on the record, or cite any procedural rule during the August 21, 2017 argument.

The trial court memorialized its decision in a form order, headed "Trial Work Sheet," on which the court placed an "X" next to "Non-Suit entered." August 21, 2017 Order at 1. Six days after receiving the notice of non-suit, Mr. Young moved for post-trial relief, raising two claims of procedural error for the first time. Nearly a year later, the trial court denied his motion.

Mr. Young appealed from that order twelve months after S.B. Conrad received summary judgment. The prothonotary then entered judgment based on the order denying Mr. Young's post-trial motion.

III. Analysis

A. Timeliness of the Appeal.

Mr. Young waited almost a year to appeal an order that, by rule, was a grant of summary judgment. We pause to consider our jurisdiction.

"Tardy filings go to the jurisdiction of the tribunal to entertain a cause, and thus cannot be lightly dismissed. The establishment of jurisdiction is of equal importance as the establishment of a meritorious claim for relief." Robinson v. Pennsylvania Bd. of Prob. & Parole , 525 Pa. 505, 582 A.2d 857, 860 (1990). "Although neither party has challenged our jurisdiction, we may always consider that question on our own motion." Kapcsos v. Benshoff , 194 A.3d 139, 141 (Pa. Super. 2018) (en banc ). A jurisdictional issue presents us with "a question of law; the appellate standard of review is de novo , and the scope of review plenary." Id.

Pennsylvania Rule of Appellate Procedure 903(a) mandates that "the notice of appeal ... shall be filed within 30 days after the entry of the order from which the appeal is taken." This Court "is without jurisdiction to excuse failure to file a timely notice of appeal, as [the] 30-day period for appeal must be strictly construed; [an] untimely appeal divests the Superior Court of jurisdiction." State Farm Fire Co. v. Craley ex rel. Estate of Craley , 784 A.2d 781, 785 n.5 (Pa. Super. 2001), reversed on other grounds sub nom , Motorists Mutual Ins. Co. v. Pinkerton , 574 Pa. 333, 830 A.2d 958 (2003).

In Rivera v. Home Depot USA, Inc. , 832 A.2d 487 (Pa. Super. 2003), this Court opined that, when the trial court and the parties should have treated a pre-trial motion as one for summary judgment rather than for non-suit, the losing party's fling of post-trial motions should not be held against it. We explained that a:

problem occurs when the pretrial ruling is finally determined shortly before trial and the parties are not careful in how they proceed. Essentially, [the parties] neither go through the formalities of a stipulated trial and have the trial judge grant a compulsory nonsuit, nor file an oral nunc pro tunc summary judgment motion and have that motion granted.

Here, since no testimony was taken, Home Depot's motion should have been characterized as a nunc pro tunc summary judgment motion, and the trial court's ruling should have been to grant summary judgment, not a compulsory nonsuit. Lewis v. United Hospitals , 692 A.2d 1055 (Pa. 1997) ... However, we do not believe the Riveras' filing of a motion to strike the nonsuit and waiting until that motion was denied before appealing was improper and defeats their right of appeal.

* * * * *

It is true that the trial court's ruling should have been considered a summary judgment ruling; however, it was called the grant of a compulsory nonsuit. Under Pa.R.C.P. 227.1(3), the appropriate procedure after the entry of a compulsory nonsuit is to file a written motion for post-trial relief. That is what the Riveras did in this case.

Although the Riveras could have appealed directly because the "nonsuit" ruling was improper, it was proper for them to follow the procedure allowing the trial court to correct the error. Once that motion was ruled upon, the Riveras had 30 days to file an appeal, which they did. Therefore, because the appeal was timely filed, we deny Home Depot's motion to quash.

Rivera , 832 A.2d at 490-491.

Like the Riveras, Mr. Young could have appealed directly from the order purporting to grant a non-suit, because it was actually a grant of summary judgment under Lewis , supra . But, because the trial court's terminology in its order erroneously dubbed the judgment an entry of non-suit, Mr. Young was likewise free to give the trial court an opportunity to correct any possible errors through a post-trial motion. By giving the trial court that opportunity, under Rivera , Mr. Young tolled the appeal-filing timeframe until the trial court disposed of his post-trial motion.²

We conclude that Rivera binds us. Because Mr. Young appealed within 30 days of the denial of post-trial motion, his appeal is timely.

B. The Jurisdiction of This Court and the Commonwealth Court

Also, this Court issued Mr. Young a rule to show cause why we should not transfer his appeal to the Commonwealth Court of Pennsylvania. See Superior Court Order, 9/14/18, at 1. We asked whether appellate jurisdiction rests in the Commonwealth Court,³ as this appeal may involve that court's "special expertise in interpretation, application, and enforcement of the Workers' Compensation Act." Id. at 1 (citing 42 Pa.C.S.A. § 742 and Wilson v. Travelers Casualty and Surety Co. , 88 A.3d 237 (Pa. Cmwlth. 2013) ).

The Pennsylvania...