J-S35040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WALTER MALSCH AND AUDREY IN THE SUPERIOR COURT OF
KATHERINE ECONOMOS, PENNSYLVANIA
Appellants
v.
NICHOLAS DELVECCHIO,
Appellee No. 3268 EDA 2014
Appeal from the Order Entered October 27, 2014
in the Court of Common Pleas of Monroe County
Civil Division at No.: 5962 CV 2011
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 05, 2015
Appellants, Walter Malsch and Audrey Katherine Economos, appeal
from the trial court’s order terminating their civil action against Appellee,
Nicholas DelVecchio, for docket inactivity pursuant to Pennsylvania Rule of
Judicial Administration 1901. We affirm.
The relevant facts and procedural history of this case are as follows.
On July 7, 2011, Appellants commenced this contract action by filing a
praecipe for a writ of summons against Appellee. On that same date,
Appellants filed a praecipe for lis pendens against certain property owned by
Appellee. For more than three years thereafter, there was no docket activity
in the case.
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*
Retired Senior Judge assigned to the Superior Court.
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On October 27, 2014, the trial court, through the prothonotary,
entered its order terminating the matter for docket inactivity pursuant to
Pennsylvania Rule of Judicial Administration 1901. The order advised that,
on September 12, 2014, pursuant to Monroe County Local Rule of Judicial
Administration 1901, the court gave notice of its intention to terminate the
case by publication in the local legal newspaper, and no party filed an
objection. (See Order, 10/27/14, at 1); see also Mon.R.J.A. 1901(a), (b).
On November 14, 2014, Appellants filed this timely appeal.1
Appellants raise one issue for our review: “Whether the trial court,
that is, the prothonotary of the court, erred as a matter of law and abused
its discretion in terminating [the] above captioned matter[?]” (Appellants’
Brief, at 4) (most capitalization omitted).2
. . . [O]ur standard of review for actions terminated pursuant to
Pa.R.J.A. 1901, or its local counterpart, [is] as follows:
The question of whether an action has been
properly terminated pursuant to Pa.R.J.A. 1901, or
its local rule counterpart, rests within the discretion
of the trial court and will not be disturbed absent an
abuse of that discretion or an error of law.
Tucker v. Ellwood Quality Steels Co., 802 A.2d 663, 664 (Pa. Super.
2002) (case citations omitted).
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1
The trial court did not order Appellants to file a concise statement of errors
complained of on appeal, nor did it enter an opinion. See Pa.R.A.P.
1925(a), (b).
2
Appellee did not file a brief.
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In their sole issue on appeal, Appellants argue that the trial court
abused its discretion in dismissing the case for lack of docket activity
because they did not receive actual notice of the court’s intention to
terminate the action, there was no evidence of prejudice to Appellee, and
the inactivity was due to the parties’ unsuccessful settlement attempts.
(See Appellants’ Brief, at 5-8). However, after review of the record, we find
that this issue is waived for purposes of appeal to this Court.
Our Supreme Court has stated that appellate courts “have a strong
interest in the preservation of consistency and predictability in the operation
of our appellate process, and issue preservation rules play an important role
in that process.” Newman Dev. Grp. of Pottstown, LLC v. Genuardi’s
Family Markets, Inc., 52 A.3d 1233, 1246 (Pa. 2012) (citation and
quotation marks omitted). Pennsylvania Rule of Appellate Procedure 302,
entitled “Requisites for Reviewable Issue,” enforces the consequence of
waiver, stating: “Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.” Pa.R.A.P. 302(a); see also
Newman Dev. Grp. of Pottstown, LLC, supra at 1246 n.5.
The rule pursuant to which the trial court terminated the instant
action, Pennsylvania Rule of Judicial Administration 1901, provides, in
pertinent part:
Rule 1901. Prompt Disposition of Matters; Termination of
Inactive Cases
(a) General policy. It is the policy of the unified judicial
system to bring each pending matter to a final conclusion as
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promptly as possible consistently with the character of the
matter and the resources of the system. Where a matter has
been inactive for an unreasonable period of time, the tribunal,
on its own motion, shall enter an appropriate order terminating
the matter.
(b) Primary responsibility for implementation of policy.
(1) Except as provided by paragraph (3), each court of
common pleas is primarily responsible for the implementation of
the policy expressed in subdivision (a) of this rule and is directed
to make local rules of court for such purposes applicable to the
court and to the community court or magisterial district judges
of the peace of the judicial district.
* * *
(c) Minimum standards. Before any order terminating a
matter on the ground of unreasonable inactivity is entered, the
parties shall be given at least 30 days’ written notice of
opportunity for hearing on such proposed termination, which
notice shall be given:
(1) In person or by mail to the last address of record of the
parties or their counsel of record and setting forth a brief
identification of the matter to be terminated; or
(2) By publication in the manner provided by rule of court
in the legal newspaper designated by rule of court for the
publication of legal notices in any case where notice by mail
cannot be given or has been returned undelivered or where the
docket of the matter shows no evidence of activity during
the previous two years. Any matter terminated after
notice by publication pursuant to this paragraph may be
reinstated by the court after dismissal upon written
application for good cause shown.
Pa.R.J.A. 1901(a)-(b)(1), (c)(1),(2) (emphases added).
Consistent with Pa.R.J.A.(c)(2), Monroe County Local Rule of Judicial
Administration 1901(c) provides: “Reinstatement: Any matter terminated
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under this rule may be reinstated by the [c]ourt upon written petition for
good cause shown.” Mon.R.J.A. 1901(c).
Here, after more than three years of docket inactivity, the trial court
gave notice by publication of its intention to terminate the action. (See
Order, 10/27/14, at 1); see also Pa.R.J.A. 1901(a), (c)(2); Mon.R.J.A.
1901(a), (b)(2). Appellants did not file an objection to the notice. (See
Order, 10/27/14, at 1). After the trial court entered its order terminating
the action, Appellants failed to file an application with the court requesting
reinstatement of the case. See Pa.R.J.A. 1901(c)(2); Mon.R.J.A. 1901(c).
Instead, they filed this appeal, asserting for the first time that the lengthy
period of inactivity was attributable to the parties’ failed attempts to settle
the matter, and arguing lack of actual notice and prejudice. (See
Appellants’ Brief, at 5-8).3
After review, we conclude that, because Appellants did not raise their
issue in the trial court, they have waived it on appeal. See Pa.R.A.P.
302(a). Accordingly, we affirm the order of the trial court.
Order affirmed.
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3
Appellants acknowledge that the parties’ ostensive settlement attempts
“do[] not appear of record[.]” (Appellants’ Brief, at 5). “It is well-settled
that this Court may only consider items which have been included in the
certified record and those items which do not appear of record do not exist
for appellate purposes.” Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa. Super.
2008), appeal denied, 962 A.2d 1198 (Pa. 2008) (citations omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
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