Miller Elec. Co. v. Deweese
| Decision Date | 17 October 2006 |
| Citation | 907 A.2d 1051 |
| Parties | MILLER ELECTRIC COMPANY v. Tate DeWEESE and Just-Mark, Inc. v. Birmingham Bistro, Inc. Appeal of Birmingham Bistro, Inc. |
| Court | Pennsylvania Supreme Court |
Rudolph L. Massa, for Birmingham Bistro, Inc., appellant.
Brian Charles Kuhn, for Miller Elec. Co., appellee.
Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
Appellant Birmingham Bistro, Inc. appeals from the order of the Superior Court quashing its appeal as untimely. We reverse.
Just-Mark, Inc., the general contractor at a construction site owned by Tate DeWeese, hired appellee Miller Electric Company as a subcontractor to perform the electrical work. Miller received partial payment, but a balance of $14,371.53 existed at the time the project was finished. Miller filed a complaint against Just-Mark, Inc. to recover that balance; DeWeese was named as an additional defendant.
After unsuccessful attempts to serve DeWeese at his last known home address, Miller petitioned for permission to serve DeWeese by first class mail at the offices of JTD-Grandview, Inc., of which DeWeese was president. The trial court granted Miller's petition, and the signed return receipt indicated the complaint was served and accepted at that address. After 20 days, a ten-day default notice was issued, and default judgment was entered November 21, 1995, against DeWeese and in favor of Miller in the amount of $15,177.17.1
Over the next several years, Miller unsuccessfully attempted to collect on its judgment. DeWeese was also the president of Birmingham Bistro, Inc., the appellant in this case. In 2001, Miller instituted garnishment proceedings against Birmingham. Miller asserted it was entitled to attach property held by Birmingham and to garnish compensation and benefits paid by Birmingham to DeWeese. The trial court disagreed and entered a verdict in favor of Birmingham February 14, 2002, finding Birmingham's assets were exempt from garnishment. The following day, Birmingham filed a motion for attorney's fees, citing 42 Pa.C.S. § 2503(3), which expressly entitles a garnishee "who is found to have in his possession or control no indebtedness due to or other property of the debtor" to collect "a reasonable counsel fee as part of the taxable costs of the matter." Id.
On February 26, 2002, Miller filed a motion for post-trial relief which encompassed several motions for judgment notwithstanding the verdict, a motion to compel, and a motion for attorney's fees. The court never entered an order disposing of Miller's post-trial motion, which was thus deemed denied on June 26, 2002, 120 days after it was filed, pursuant to Pa.R.C.P. 227.4. Rule 227.4 states the prothonotary shall, upon praecipe of a party:
(1) enter judgment upon the verdict of a jury or the decision of a judge following a trial without jury, if
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(b) one or more timely post-trial motions are filed and the court does not enter an order disposing of all motions within one hundred twenty days after the filing of the first motion. A judgment entered pursuant to this subparagraph shall be final as to all parties and all issues and shall not be subject to reconsideration. . . .
Pa.R.C.P. 227.4(1). On June 27, 2002, Birmingham filed a praecipe to enter judgment on its verdict and the prothonotary entered final judgment in favor of Birmingham that day.
The trial court entered an order July 10, 2002, denying Birmingham's February 15 motion for attorney's fees. On August 8, 2002, Birmingham filed a notice of appeal from the July 10 order. Miller moved to quash the appeal as untimely, arguing the notice of appeal was filed more than 30 days after the final judgment on June 27, 2002. The Superior Court granted Miller's motion and quashed the appeal. The court concluded the judgment entered June 27, 2002 was the final appealable order in the case, and thus Birmingham's August 8 notice of appeal was untimely, as it was filed more than 30 days after final judgment.2 Miller Electric Company v. DeWeese, et al., No. 1420 WDA 2002, 2003 WL 22490946, unpublished memorandum at 7 (Pa.Super. filed August 25, 2003). We granted review to consider the propriety of the order quashing the appeal and to consider the rules governing this aspect of post-trial procedure.
This case presents a procedural conundrum in that the prothonotary entered judgment in Birmingham's favor June 27, 2002, but the trial court did not deny Birmingham's motion for attorney's fees until July 10, 2002. The Superior Court determined the 30-day appeal period began with the entry of judgment. However, Birmingham initially had no reason to appeal from the June 27 judgment in its favor, as it did not become an aggrieved party until the denial of its motion for attorney's fees two weeks later.
Birmingham argues its notice of appeal was timely since a motion for attorney's fees under 42 Pa.C.S. § 2503(3) is not a post-trial motion, and therefore, is not disposed of by entry of final judgment. It survives, and remains outstanding, such that the 30-day period for appeal should begin to run on the date of the order disposing of it; it is this order from which the appeal lies. We agree. A motion for fees under § 2503(3) is not a post-trial motion, and the entry of judgment on June 27 did not dispose of Birmingham's motion.
The Superior Court relied on two cases in quashing Birmingham's appeal. In Freidenbloom v. Weyant, 814 A.2d 1253 (Pa.Super.2003), the plaintiff filed a praecipe to discontinue the action, and the defendant filed a motion for attorney's fees under § 2503(9),3 36 days later. Freidenbloom, at 1256. The Freidenbloom court determined the motion was untimely, citing 42 Pa.C.S. § 5505 for the proposition that a trial court retains jurisdiction to act on a motion for attorney's fees that is filed within 30 days after final resolution of a case. The court stated:
A trial court's jurisdiction generally extends for thirty days after the entry of a final order:
Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
42 Pa.C.S. § 5505. After the 30 day time period, the trial court is divested of jurisdiction. A praecipe to discontinue a case constitutes a final resolution of all issues. Further, a praecipe for discontinuance has the same effect as a judgment entered in favor of the defendant. Thus, since a praecipe for discontinuance constitutes a final resolution of the case and has the effect of a final judgment, a trial court may consider a petition for fees filed within a period of 30 days after the filing of the praecipe. In summary, requests for counsel fees under 42 Pa.C.S.A. § 2503 are part of the principal claim and must be determined as part of that claim.
Freidenbloom, at 1255 (citations and footnote omitted). Since the defendant filed his motion for fees beyond the 30-day period in which the trial court retained jurisdiction, the court held the trial court lacked the authority to act on it. The Superior Court vacated the trial court's order granting the motion, deeming it a "nullity." Id., at 1256.
We find Freidenbloom inapposite. Freidenbloom stands for the proposition that a praecipe to discontinue constitutes a final judgment, and that a trial court may only act on a motion for fees that is filed within 30 days from final judgment. Here, however, the motion for fees was filed prior to the entry of judgment; Freidenbloom does not address whether the entry of judgment is dispositive of a motion for fees filed prior to judgment.
The second case relied upon by the Superior Court is First National Bank of Northeast v. Gooslin, 399 Pa.Super. 496, 582 A.2d 1054 (1990). Defendant Gooslin pledged a dredge to the bank as collateral for a loan; when he defaulted, the bank obtained judgment and placed a levy on the dredge. When Wilcke claimed ownership of the dredge, the bank commenced an action in interpleader; Wilcke filed a petition to recover storage and maintenance costs for the dredge. The trial court ultimately issued an order finding Wilcke was the rightful owner, but did not rule on Wilcke's petition for costs. Neither party appealed from the court's order. More than three months later, Wilcke filed a second petition requesting storage and maintenance costs, and added a request for attorney's fees under § 2503(5).4
The trial court denied both claims as waived. The Superior Court agreed that Wilcke waived his claim to storage and maintenance costs since he "fail[ed] to seek a modification of the trial court's Order [naming him as the owner], or to file an appeal therefrom . . . ." First National Bank, at 1055-56. With regard to attorney's fees, Wilcke argued he was statutorily entitled under § 2503(5), and therefore had a distinct cause of action which could not be waived as part of the underlying action. The Superior Court disagreed; even assuming Wilcke's entitlement to fees was compulsory, it concluded such a right could nevertheless be waived. First National Bank, at 1056 & n. 1. As he failed to assert his claim for fees in his original action, it was waived. Id., at 1056. The court opined:
It is settled law that counsel fees cannot be sued for separately from the principal claim. "Separate suits constitute an impermissible splitting of but one cause of action." Goldberg v. Goldberg, 306 Pa.Super. 504, 506, 452 A.2d 838, 839 (1982) . . . . Wilcke's contention that he had an absolute right to recover counsel fees pursuant to 42 Pa.C.S.A. § 2503(5) does not alter our conclusion that he cannot recover counsel fees in this action. . . . It is axiomatic that finality of judgment extends not only to matters actually determined but also to matters which could properly have been raised and determined therein.
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