J-A08001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HIREN PATEL, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHARON K. SMITH AND NICOLE
JOHNSON,
Appellees No. 1244 EDA 2015
Appeal from the Order Entered March 31, 2015
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2011-08715
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 22, 2016
Hiren Patel appeals from the March 31, 2015 order granting summary
judgment and dismissing this action because it was instituted after
expiration of the applicable statute of limitations. We affirm.
Appellant was the owner of various Subway franchises in southeastern
Pennsylvania. On October 3, 2011, Appellant commenced this lawsuit
against Appellees, Subway franchise owners Sharon K. Smith and Nicole
Johnson, by filing a written complaint in the Court of Common Pleas of Bucks
* Retired Senior Judge assigned to the Superior Court.
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County.1 Appellant contended that, as a result of misrepresentations by
Appellees and transactions that he conducted with them in 2008, he was
misled into making certain investments within the Subway franchise
organization and was damaged thereby. He asserted fraud, conversion and
tortious interference with business relations.
Before the instant lawsuit was filed, Appellant had commenced an
earlier federal action in the United States District Court for the Eastern
District of Pennsylvania (“federal court”) on August 18, 2010, against
Appellees. The federal action included the following claims for relief: 1)
conversion; 2) fraud; 3) civil conspiracy; 4) tortious interference with
business relations; 5) restraint of trade; 6) federal civil racketeering; and 7)
securities fraud. On October 15, 2010, Appellees moved to dismiss the
federal lawsuit for lack of jurisdiction and for failure to state a claim. On July
11, 2011, the motion was granted, but the dismissal was without prejudice
and Appellant was granted leave to file an amended complaint to sustain
federal jurisdiction. No amended pleading was filed; instead, Appellant
commenced the lawsuit on October 3, 2011, by filing a new complaint.
Appended to the complaint herein was an uncertified copy of docket entries
in the federal case.
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1
Appellees obtained the removal of this action to the federal court, and
Appellant thereafter successfully asked the federal court to remand this
lawsuit back to the court of common pleas.
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Appellees moved for summary judgment on the ground that the
causes of action pled in the case at issue, fraud, conversion, and tortious
interference with business relations, were barred by the applicable statute of
limitations.2 They noted that Appellant’s claims arose from activities
conducted from May to September 2008, and the tort causes of action were
subject to a two-year statute, yet Appellant did not file this case until
October 3, 2011.
In opposition to the summary judgment motion based upon the
statute-of-limitations defense, Appellant argued that the filing date of the
federal case, which he averred was commenced within the applicable
limitations period, should control the issue. The trial court determined that
Appellant had not complied with the requirements of the transfer statute,
and granted summary judgment to Appellees. This appeal followed.
Appellant presents one question for our review: “Did the lower court
commit legal error and/or abuse its discretion, by having granted summary
judgment in favor of [Appellees] as to all claims in the case asserted by
[Appellant], on the basis that all of [Appellant’s] claims were time-barred?”
Appellant’s brief at 2. Appellant’s specific averment is that he “properly
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2
The averments in the motion for summary judgment dispel Appellant’s
position that the statute of limitations question was raised by the trial court
sua sponte. Appellant’s brief at 10. Appellant relied upon the transfer
statute in an attempt to save this case from being dismissed as untimely.
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transferred his case to Bucks County from the Federal Court . . . after the
Federal Court had dismissed his federal causes of action.” Appellant’s brief
at 10. Appellant contends that this action should be considered as filed on
August 8, 2010, when Appellant instituted the federal lawsuit, and the use of
that date renders this case timely with regard to the statute of limitations.
Our scope and standard of review when a trial court grants summary
judgment is as follows:
[S]ummary judgment is appropriate only in those cases where
the record clearly demonstrates that there is no genuine issue
of material fact and that the moving party is entitled to
judgment as a matter of law. When considering a motion for
summary judgment, the trial court must take all facts of record
and reasonable inferences therefrom in a light most favorable to
the non-moving party. . . . [A]n appellate court may reverse a
grant of summary judgment if there has been an error of law or
an abuse of discretion.
Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015) (citations omitted).
If the statute of limitations has expired when a case was commenced, then
the trial court is considered to have properly granted summary judgment.
Chris Falcone, Inc. v. Insurance Co. of State of Pennsylvania, 907
A.2d 631 (Pa.Super. 2006).
Section 5103 of title 42 governs when a Pennsylvania action will be
considered filed as of the date of a previously-initiated federal action:
(a) General rule.-If an appeal or other matter is taken to or
brought in a court or magisterial district of this Commonwealth
which does not have jurisdiction of the appeal or other matter,
the court or magisterial district judge shall not quash such
appeal or dismiss the matter, but shall transfer the record
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thereof to the proper tribunal of this Commonwealth, in a court
or magisterial district where the appeal or other matter shall
be treated as if originally filed in the transferee tribunal
on the date when the appeal or other matter was first
filed of this Commonwealth. A matter which is within the
exclusive jurisdiction of a court or magisterial district judge of
this Commonwealth but which is commenced in any other
tribunal of this Commonwealth shall be transferred by the other
tribunal to the proper court or magisterial district of this
Commonwealth where it shall be treated as if originally filed in
the transferee court or magisterial district of this Commonwealth
on the date when first filed in the other tribunal.
(b) Federal cases.-
(1) Subsection (a) shall also apply to any matter
transferred or remanded by any United States court for a
district embracing any part of this Commonwealth. In order to
preserve a claim under Chapter 55 (relating to limitation of
time), a litigant who timely commences an action or proceeding
in any United States court for a district embracing any part of
this Commonwealth is not required to commence a protective
action in a court or before a magisterial district judge of this
Commonwealth. Where a matter is filed in any United
States court for a district embracing any part of this
Commonwealth and the matter is dismissed by the United
States court for lack of jurisdiction, any litigant in the
matter filed may transfer the matter to a court or
magisterial district of this Commonwealth by complying
with the transfer provisions set forth in paragraph (2).
(2) Except as otherwise prescribed by general rules, or by order
of the United States court, such transfer may be effected by
filing a certified transcript of the final judgment of the
United States court and the related pleadings in a court or
magisterial district of this Commonwealth. The pleadings
shall have the same effect as under the practice in the United
States court, but the transferee court or magisterial district
judge may require that they be amended to conform to the
practice in this Commonwealth. Section 5535(a)(2)(i) (relating
to termination of prior matter) shall not be applicable to a matter
transferred under this subsection.
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42 Pa.C.S. § 5103(a)-(b)(2) (emphases added). “The stated policy behind
this section is to preserve a claim or cause of action timely filed in federal
court on the ground that the claimant should not lose her opportunity to
litigate the merits of the claim simply because she erred regarding federal
jurisdiction.” Kelly v. Hazleton Gen. Hosp., 837 A.2d 490, 494 (Pa.Super.
2003) (citation omitted).
In the present case, Appellant claims that he filed “copies of the
certified documents which he had received from the Clerk of the District
Court” with his October 3, 2011 complaint. Appellant’s brief at 11. Our
review of the record reveals the following. The complaint had one
attachment, and it is a copy of the docket sheet for the federal case. The
docket sheet is not certified. Certified copies of the related pleadings, i.e.,
the complaint, presented in the federal lawsuit were not attached to the
October 3, 2011 complaint, and a certified transcript of the final judgment of
the United States court was not appended to the complaint. Indeed, when
this case was commenced, the federal action had not proceeded to final
judgment since it was dismissed without prejudice, and Appellant was given
a chance to amend to sustain federal jurisdiction. Thus, it is clear that
Appellant did not comply with § 5103. He instituted the present case on
October 3, 2011, by filing a complaint, and appending thereto only an
uncertified copy of the docket sheet of the federal proceeding.
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In addition, the filing of a complaint to initiate this case, in and of
itself, rather than the filing of a certified copy of the relevant federal
pleadings, is fatal to Appellant’s position. “We have held that a litigant
should file a certified transcript of the final judgment of the federal court and
a certified transcript of the pleadings from the federal action, rather than
new pleadings in the state court.” Chris Falcone, Inc., supra at 637.
Simply put, the “litigant shall not file new pleadings in state court,” id.
at 638 (emphasis in original), which is precisely what Appellant did herein.
Appellant’s heavy reliance upon Williams v. F.L. Smithe Machine
Co., Inc., 577 A.2d 907, 910 (Pa.Super. 1990), is misguided. In Williams,
the question was whether the transfer had been promptly effectuated after
the federal dismissal. Appellant herein never satisfied, at the onset, the
mandate that he file a certified copy of the relevant federal pleadings and
final judgment; instead, he fatally filed a completely new complaint. Indeed,
Williams expressly admonished that
in order to protect the timeliness of an action under 42 Pa.C.S.A.
§ 5103, a litigant, upon having his case dismissed in federal
court for lack of jurisdiction, must promptly file a certified
transcript of the final judgment of the federal court and, at the
same time, a certified transcript of the pleadings from the
federal action. The litigant shall not file new pleadings in
state court.
Id. at 910 (emphases added).
The pertinent case authority compels our affirmance of the trial court’s
decision. See Kelly, supra (finding that the plaintiff’s action was not saved
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under § 5103 since plaintiff filed a new complaint to institute the state action
and neglected to filed any relevant pleadings from the federal court); see
also Ferrari v. Antonacci, 689 A.2d 320 (Pa.Super. 1997). Thus, the trial
court did not abuse its discretion or commit an error of law in determining
that Appellant did not comply with § 5103 and that the filing date for the
federal litigation could not be used to compute whether Appellant brought
this case within the applicable statute of limitations.
Appellant also argues that he should be given an opportunity to amend
his complaint. This position overlooks the hard reality that his case is
untimely. Appellant filed this action beyond the two-year period allowed
under the applicable statute of limitations. Amending the complaint will not
cure this defect. Appellant cannot utilize the filing date of the federal lawsuit
to compute the statute of limitations in that he did not comply with § 5103.
To the contrary, he violated controlling Pennsylvania authority by
commencing this lawsuit through the filing of a new complaint.
Order affirmed.
Judge Olson joins the memorandum.
Judge Strassburger files a dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
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Patel, H. v. Smith, S.
Combined Opinion