North Cornwall Township, v. George D. Konevitch and Margaret M. Konevitch

North Cornwall Township, v. George D. Konevitch and Margaret M. Konevitch

 

Civil Action-Municipal Law-Municipal Claim and Lien-Appeal-Concise Statement of Matters Complained of on Appeal-Timeliness-Nunc Pro Tunc Relief-Extraordinary Circumstances-Breakdown in the Process-Illness-COVID-19 Infection-Hospitalization

 

The Court affirmed a municipal claim and lien issued by North Cornwall Township (“the Township”) upon property owned by George D. Konevitch and Margaret M. Konevitch (“Appellants”) for delinquent municipal charges.  Appellants ultimately filed a Notice of Appeal to the Pennsylvania Commonwealth Court.  Appellants failed to file a Concise Statement of Matters Complained of on Appeal (“Concise Statement”) within twenty-one (21) days following the entry of the Court Order upon the docket directing Appellants to file the same.  Appellants were directed to file a request with the Pennsylvania Commonwealth Court to file a Concise Statement of Matters Complained of on Appeal after filing a request with the Court to file a Concise Statement Nunc Pro Tunc.  The Commonwealth Court remanded the matter to the Court for a determination whether Appellants should be permitted to file their Concise Statement nunc pro tunc.

 

1. Pa.R.A.P. Rule 1925(b)(2)(i) provides that the judge may allow for the filing of a statement or an amended or supplemental statement nunc pro tunc in extraordinary circumstances.

 

2. Nunc pro tunc relief is allowed only when there has been a breakdown in the process constituting extraordinary circumstances.

 

3. Courts also have allowed nunc pro tunc relief when non-negligent circumstances as they relate to an appellant or counsel occasion delay.

 

4. Even if there is a breakdown in the process, the appellant must attempt to remedy it within a very short duration of time.

 

5. Appellant George D. Konevitch’s bout with COVID-19 infection, his hospitalizations and lingering cognitive impairment due to his illness constitute non-negligent circumstances that excuse the late filing of the Concise Statement and he acted as promptly as possible to rectify the untimeliness when the Statement was due on February 1, 2022 and he requested to file the Statement nunc pro tunc on February 11, 2022.

 

L.C.C.C.P. No. 2020-00272, Opinion by John C. Tylwalk, Judge, June 9, 2022.

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

NORTH CORNWALL TOWNSHIP, :         NO. 2020-00272

Plaintiff/Claimant                    :

:

1. :

:

GEORGE D. KONEVITCH and                  :

MARGARET M. KONEVITCH                  :

Defendants/Registered Owners:

 

ORDER OF COURT

 

AND NOW, this 9th day of June, 2022, upon consideration of Defendant’s request to File Concise Statement of Errors Complained of on Appeal is Filed As Nunc Pro Tunc Due to Illness and Hospitalization and Filing in the Lower Court, and the evidence adduced at the hearing conducted on June 2, 2022, in accordance with the March 25, 2022 Order of the Commonwealth Court of Pennsylvania, at No. 17 C.D. 2022, it is hereby Ordered that said Petition is GRANTED.  We will treat the Concise Statement filed Nunc Pro Tunc on February 11, 2022 as having been timely filed.  Appellant is directed to file the Amended Concise Statement of Errors Complained of on Appeal is Filed as Nunc Pro Tunc Due to Illness and Hospitalization and Filing in Lower Court with the Prothonotary of this Court within ten (10) days of his receipt of this Order.

 

BY THE COURT:

 

                                                          _____________________________, P.J.

                                                          JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Amy B. Leonard, Esquire

       George D. Konevitch/2130 Colebrook Road/Lebanon, PA  17042

       Margaret M. Konevitch/2130 Colebrook Road/Lebanon, PA  17042

       Prothonotary, Commonwealth Court of Pennsylvania

       Michelle Howard/Court Administration

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

NORTH CORNWALL TOWNSHIP, :         NO. 2020-00272

Plaintiff/Claimant                    :         17 C.D. 2022

:

1. :

:

GEORGE D. KONEVITCH and                  :

MARGARET M. KONEVITCH                  :

Defendants/Registered Owners:

 

OPINION, TYLWALK, P.J., JUNE 9, 2022.

 

On January 31, 2020, North Cornwall Township (“Township”) filed a Municipal Claim for Delinquent Municipal Charges in the amount of $4,981.80 against property located at 2130 Colebrook Road in Lebanon which is owned by George D. Konevitch and Margaret M. Konevitch.  On March 16, 2020, Mr. and Mrs. Konevitch filed a Praecipe to Schedule Hearing  to Vacate and/or Strike a Municipal Claim/Lien for Fraud Upon the Court.  We conducted hearings on the Konevitch’s request to strike the lien on January 11, 2021 and March 31, 2021.  By Order of December 7, 2021, we affirmed the Township’s municipal claim and lien.  On December 20, 2021, Mr. Konevitch filed a Right of Petition, 1620, Rectum Rogare[1] challenging the December 7, 2021 Order.  We treated this document as a Motion for Reconsideration and denied the request by Order of December 21, 2021.  On January 5, 2022, Mr. Konevitch filed a Notice of Appeal of the December 7, 2021 Order.  On January 6, 2022, we issued an Order directing him to file a Concise Statement of Errors Complained of on Appeal no later than twenty-one (21) days from the entry of the Order on the docket, which was January 7, 2022.  As per that Order, the Concise Statement was due on February 1, 2022; however, Mr. Konevitch failed to file the Concise Statement by that date.

On February 2, 2022, the Township filed a Motion of Plaintiff/Claimant, North Cornwall Township to Dismiss Appeal of Defendants due to their failure to timely file the Concise Statement.  By Order entered February 7, 2022, we denied that Motion.  On that same date, we entered an Order indicating that all issues had been waived on appeal and that the appeal should be dismissed for the failure to file the Concise Statement.  By that Order, we also directed that the file be transmitted to the Commonwealth Court of Pennsylvania.

On February 11, 2022, Mr. Konevitch filed a Concise Statement of Errors Complained of on Appeal is Filed as Nunc Pro Tunc.  He sought to excuse his tardiness due to illness and hospitalization.     On February 16, 2022, we entered an Order denying his request to file nunc pro tunc, stating that “this Court is without jurisdiction to entertain such request or direct such relief” and that “Appellant’s request should be directed to the Commonwealth Court of Pennsylvania in accordance with Pa.R.A.P. 1925(c)(2).”  (Order entered February 16, 2022)  By Order dated March 25, 2022, the Commonwealth Court remanded the matter to this Court for a determination as to whether Mr. Konevitch should be permitted to file his 1925(b) Statement nunc pro tunc.[2]  In accord with this Order, we conducted an evidentiary hearing on June 2, 2022.

At the hearing, Mr. Konevitch explained that he was suffering with COVID-19 in January 2022 and was taken to the hospital by ambulance and admitted on January 15, 2022.  He was released on January 17, 2022; however, he was still feeling “blown out” and “just couldn’t figure out which end was up.”  (N.T. 8)  Mrs. Konevitch was concerned that Mr. Konevitch was still “blundering” and “stumbling” when he arrived home.  (N.T. 13)   Mrs. Konevitch summoned an ambulance on that day due to Mr. Konevitch still exhibiting these signs of cognitive impairment.  Mr. Konevitch was re-admitted to the hospital and stayed for another night, being re-released on January 18, 2022.  Mr. Konevitch provided medical records indicating his hospitalization.  (Exhibits “1” and “2”)  He explained that when he returned home after the additional night in the hospital, he remained ill and continued to have cognitive difficulties and he was unable to comprehend oral or written communications for some time.  When he was eventually able to go through the paperwork piled up on his table, he realized that there was a problem with the timeline of the Concise Statement.  He explained that he did his best to comply with our January 6, 2022 Order, but he was still in a “fog” and “trying to recover his thought patterns and get all of that stuff together and it on paper and get it into the Court.”  (N.T. 10-11)  He further explained that he has been diagnosed with “long COVID” and has developed a heart condition as a result of his illness.  He is still under the care of a physician and goes for treatment once every week to deal with these medical issues.

On cross-examination, Mr. Konevitch testified that Mrs. Konevitch had also tested positive for COVID-19 during that time period.  However, she did not have any symptoms of the illness.[3]

Pa.R.A.P. 1925(b)(2)(i) provides, in part:

(2) Time for filing and service

(i) the judge shall allow the appellant at least 21 days from the date of the order’s entry on the docket for the filing and service of the [concise statement]. … In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental statement nunc pro tunc.

 

Pa.R.A.P. 1925(b)(20(i).  The Note to Rule 1925(b)(2), explains:

 

In general, nunc pro tunc relief is allowed only when there has been a breakdown in the process constituting extraordinary circumstances. …   Courts have also allowed nunc pro tunc relief when “non-negligent circumstances, either as they relate to appellant or his counsel” occasion delay.  However, even when there is a breakdown in the process, the appellant must attempt to remedy it within a “very short duration” of time. Id.

 

 

Pa.R.A.P. 1925 (Note) (citations omitted).  These considerations are applicable to a request to file a concise statement nunc pro tunc.  See, Smith v. Barto, 242 A.3d 419 (Pa. Super. 2020) (unpublished non-precendential opinion).

We find that Mr. Konevitch’s bout with COVID-19, his hospitalizations, and his lingering cognitive impairment due to his illness constitute non-negligent circumstances which excuse the late filing of the Concise Statement in his appeal of this matter.  We further find that he acted as promptly as possible in attempting to rectify the situation.  The Concise Statement was due on February 1, 2022 and Mr. Konevitch filed his request for nunc pro tunc relief in this Court on February 11, 2022.  Therefore, we will grant his request for nunc pro tunc relief and treat his Concise Statement as having been timely filed.  It appears that Mr. Konevitch filed an Amended Concise Statement with the Commonwealth Court.  Although he has provided this Court with a copy of the Amended Concise Statement it does not appear on the lower court docket.  Therefore, we will direct him to file the Amended Concise Statement with the Prothonotary of this Court within ten days of service of this Order and Opinion.   Thereafter, we will issue a Rule 1925(b) Opinion promptly.

 

 

 

 

 

 

[1] Rectum Rogare:  “[t]o ask for right; to petition the judge to do right.”  Black’s Law Dictionary 5^th ed. At p. 1148.

[2] The Commonwealth Court’s Order referred to an “Amended Concise Statement.”  Because that document was never received by this Court, George Konevitch delivered it to Judges’ Chambers on June 2, 2022 after the conclusion of the hearing.

[3] We understand the Township’s point that Mrs. Konevitch remains a party to this action, that her rights will be affected by the outcome, and that she could have filed a Concise Statement in a timely manner.  However, the Notice of Appeal was filed solely in Mr. Konevitch’s name and he is listed as the sole Appellant on the Commonwealth Court docket.  Therefore, he was the sole party responsible for the filing of the Concise Statement.