M. R. Ullman, et al. v. P. J. Symons, Jr. (Opinion Per Curiam)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA M. Robert Ullman and Canoe Manufacturing Co., Inc., Appellants v. Peter J. Symons, Jr. : : : : : : : No. 2131 C.D. 2007 Submitted: January 25, 2008 OPINION NOT REPORTED MEMORANDUM OPINION PER CURIAM FILED: May 12, 2008 Appellants, M. Robert Ullman (Ullman) and Canoe Manufacturing Company (Canoe) appeal from an order of the Court of Common Pleas of Schuylkill County (trial court) which sustained the preliminary objections filed by Peter J. Symons, Jr., Prothonotary for Schuylkill County (Prothonotary) and dismissed Appellants complaint. We affirm. The following procedural history is relevant to this case. Canoe, a clothing manufacturer, filed for bankruptcy and, along with its president, Ullman, commenced a malpractice claim against its former counsel, Joseph H. Jones, Esq. and Williamson, Friedberg & Jones (collectively, Jones). On December 22, 2000, the trial court granted the motion for summary judgment filed by Jones. On appeal, the Superior Court reversed, concluding that there were material facts that had not been decided. Canoe Manufacturing Co., Inc., v. Jones, No. 693 MDA 2003 (Pa. Super., filed January 16, 2004). On remand, the trial court in a decision dated December 30, 2005, granted Jones second motion for summary judgment. The record indicates that copies of the trial court s decision granting summary judgment were mailed to the parties and docketed on December 30, 2005. On January 9, 2006 Jones filed a praecipe for judgment with the Prothonotary s office. On January 9, 2006, the Prothonotary entered judgment on the docket and issued a 236(b) Notice to Appellants.1 On February 7, 2006, Appellants filed an appeal, which was more than thirty days after the trial court s decision of December 30, 2005. The Superior Court quashed the appeal in an order dated April 12, 2006 and the Supreme Court, on November 1, 2006, denied Appellants petition for allowance of appeal. Canoe Manufacturing Co., Inc., v. Jones, No. 302 MDA 2006 (Pa. Super, filed, April 12, 2006), petition for allowance of appeal denied, 589 Pa. 736, 909 A.2d 1288 (2006). Appellants then filed a pro se complaint against the Prothonotary, alleging that the Prothonotary committed an error causing Appellants to file a late appeal of the trial court s December 30, 2005 order. Specifically, Appellants complaint states that although the Prothonotary sent a copy of the trial court s December 30, 2005 order granting Jones motion for summary judgment, the Prothonotary did not enter judgment at that time. The complaint further alleges that the failure of the Prothonotary to enter judgment created a false appeal time. The complaint seeks damages in the amount of $27,154,005.00, the same amount sought in the case against Jones. The Prothonotary filed preliminary objections to Appellants complaint. The trial court thereafter, sustained the preliminary objections, 1 Pa. R.C.P. No. 236 provides that the prothonotary shall give written notice of the entry of a judgment, order or decree. 2 concluding that the Prothonotary is immune from suit and that the suit is barred by the doctrine of collateral estoppel. This appeal followed.2 In this case, the trial court s decision granting the motion for summary judgment in favor of Jones was entered and mailed to the parties on December 30, 2005. Appellants, nonetheless, claim that the Prothonotary was required to provide notice and enter judgment. We observe that Pa. R.C.P No. 236 provides for the following with respect to notice: 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 . . . . (2) any other order, decree or judgment to each party s attorney of record or, if unrepresented to each party. The notice shall include a copy of the order, decree or judgment. In Progressive Home Federal Savings and Loan Association v. Kocak, 518 A.2d 808 (Pa. Super. 1986), petition for allowance of appeal denied, 516 Pa. 614, 531 A.2d 781 (1987), the Superior Court addressed the effect of the filing of an order entering summary judgment and a subsequent praecipe for judgment. The Court stated that [a]n order granting summary judgment is final and appealable, and once summary judgment is granted, an appeal must be filed, if at all, within 30 days. Id. at 809. The trial court order therein stated that plaintiff s motion is 2 In an appeal from a trial court s order sustaining preliminary objections and dismissing a complaint, our standard of review is to determine whether an error of law was committed, or an abuse of discretion occurred. In re Estate of Bartol, 846 A.2d 209, 213 (Pa. Cmwlth. 2004). When considering the preliminary objections, we must keep in mind that they admit as true all well-pled facts and inferences reasonable deducible therefrom, but not conclusion of law. Id. 3 granted and summary judgment is entered. Thus, once the trial court s order entering summary judgment was filed . . . judgment was entered. Id. Although the appellee in that case subsequently praeciped for judgment, the Superior Court determined that such was a meaningless act because the judgment had already been entered. Id. Here, the Prothonotary complied with Pa. R.C.P. No. 236. Specifically, the trial court issued an order on December 30, 2005 granting the motion for summary judgment, which constitutes the entry of judgment on December 30, 2005. A copy of the trial court order was mailed to the parties on December 30, 2005 which effectively fulfilled the Prothonotary s mandate to immediately give written notice of the order/judgment. (Exhibits for appeal at 14.) The trial court s order which was issued, docketed and mailed to the parties on December 30, 2005, states that it enters[s] the following ¦ Defendants Second Motion for Summary Judgment is granted. (Trial court opinion and order of December 30, 2005). Thus, because the trial court s order granting summary judgment was entered on December 30, 2005, Appellants had 30 days from that date in which to file an appeal. Moreover, it was unnecessary for the prothonotary to further enter judgment because once the trial court s order granting summary judgment was filed, judgment was entered. See Pa. R.C.P. [No.] 227.4(2) (the prothonotary shall enter judgment on praecipe of a party when the court itself does not enter judgment. Progressive Home Federal Savings and Loan Association, 518 A.2d at 809. To the extent that Appellants claim that the Prothonotary also erred in accepting Jones praecipe for entry of judgment on January 9, 2006, because judgment had already been entered, the subsequent praecipe for judgment was a 4 meaningless act. Id. Moreover, we also observe that the Prothonotary is not an administrative officer who has discretion to reject a document that is proper on its face and conforms to the rules of court. [I]f documents tendered are proper on their face and in conformity to rules of court, a prothonotary does not have discretion to refuse to enter them ¦. Sollenberger v. Lee, 925 A.2d 883, 884 (Pa. Cmwlth. 2007). (Citations omitted.) As to the immunity of the Prothonotary, it is first necessary to decide whether an entity is a Commonwealth or local agency, for which determination the courts generally look to the enabling legislation. Westmoreland, 844 A.2d 54 (Pa. Cmwlth. 2004). Davis v. County of In accordance with 42 Pa. C.S. §2734(a) [t]here shall be an office of the prothonotary in each county of this Commonwealth, which shall be supervised by the prothonotary of the county ¦. This court in Commonwealth Federal Savings and Loan Association v. Pettit, 586 A.2d 1021, 1026, n.9 (Pa. Cmwlth. 1991), observed that negligent actions by a Prothonotary would be governed as a local agency by 42 Pa. C.S. §8542. Local agencies are immune from liability in accordance with 42 Pa. C.S. §8541, unless an exception is met under 42 Pa. C.S. §8542.3 Section 8542 provides: (1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and 3 The trial court in the case sub judice determined that, based on the provisions of the Judicial Code, 42 Pa. C.S. §§8521-8522 addressing sovereign immunity, the Prothonotary was immune from suit. The Judicial Code, 42 Pa. C.S. §§ 8541-8542, governing local agencies, is instead applicable. An appellate court may affirm a lower court on other grounds. Lucchino v. Commonwealth. 570 Pa. 277, 286, n.22, 809 A.2d 264, 270 n.22 (2002). 5 (2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, negligent acts shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct. The categories listed in 42 Pa. C.S. §8542 (b) include: (1) vehicle liability; (2) care, custody and control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks and (8) care, custody or control of animals. Here, Appellants alleged in the complaint that the Prothonotary failed to give notice and properly enter judgment. However, such does not fall within any of the categories contained within 42 Pa. C.S. §8542. Therefore, the Prothonotary is immune from suit. Finally, we observe that Appellants, in their brief, now claim that the Prothonotary was part of a conspiracy, that he engaged in willful misconduct with specific intent and with reckless disregard of his legal duty and that the Prothonotary had a legal duty to transmit the entire record to the Superior Court in its malpractice case against Jones. We observe, however, that these allegations were not raised in Appellants complaint and are being raised for the first time on appeal. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Macioce v. The Zoning Hearing Board of the Borough of Baldwin, 850 A.2d 882 (Pa. Cmwlth.), petition for allowance of appeal denied, 581 Pa. 683, 863 A.2d 1150 (2004).4 4 We also note that Appellants have submitted to this court a variety of documents, which we have not considered. The post-submission communication contains no request to file or a certificate of service. 6 In accordance with the above, the decision of the trial court is affirmed.5 5 Based on this court s determination that Appellants claim is barred based on the Prothonotary s immunity, we need not address the trial court s additional determination that Appellants claim is also barred by the doctrine of collateral estoppel. 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA M. Robert Ullman and Canoe Manufacturing Co., Inc., Appellants v. Peter J. Symons, Jr. : : : : : : : No. 2131 C.D. 2007 PER CURIAM ORDER Now, May 12, 2008, the Order of the Court of Common Pleas of Schuylkill County, in the above-captioned matter, is affirmed.

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