J-A22006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DUNMORE EXCLUSIVES LLC IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
AMANDA KOCHIS AND LAWRENCE
KOCHIS
Appellee No. 263 MDA 2016
Appeal from the Order Entered January 13, 2016
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2015-CV-4935
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 30, 2016
Appellant Dunmore Exclusives LLC appeals from the January 13, 2016
order denying its motion to reinstate the complaint filed against Appellees
Amanda Kochis and Lawrence Kochis. We affirm.
Appellant owned property located at 150 South Sumner Avenue,
Scranton, Pennsylvania. Alex Brunell is the agent for Appellant. Appellees
rented the Sumner Avenue apartment from Appellant.
On June 8, 2015, Appellant filed a complaint for eviction against
Appellees, maintaining Appellees had not paid rent. The Honorable Terrance
Gallagher, a magisterial district judge, scheduled a hearing for July 15,
2015. Appellant requested a continuance, which was granted. A new
hearing date was scheduled for August 12, 2015. Appellees did not receive
notice of the continuance or the new date, because they had moved from
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the apartment, which is where the court sent notice of the continuance.
Because Appellees appeared on July 15, 2015, the magistrate court held a
hearing on the matter, despite the fact that Appellant was not present.1 At
the conclusion of the hearing, Magistrate Gallagher entered judgment in
favor of Appellees.
On August 14, 2015, Appellant filed a timely notice of appeal.
Although required by the Rules of Civil Procedure of the Magistrate District
Court to file a complaint in the court of common pleas within 20 days of the
filing of the notice of appeal (which would be September 3, 2015), Appellant
did not file a complaint until September 11, 2015.
On September 23, 2015, Appellees filed a notice to strike the appeal.
On that same date, the clerk of judicial records entered an order striking the
appeal.
On January 7, 2016, Appellant filed a motion to reinstate the
complaint. On January 13, 2016, the court denied the motion. On February
10, 2016, Appellant filed a timely notice of appeal. The trial court did not
order Appellant to file a concise statement of issues on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), and Appellant did not do
so. On April 11, 2016, the trial court issued an opinion pursuant to Rule
1925(a).
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1
A city of Scranton housing inspector also was present at the hearing.
1925(a) Opinion at 2. Appellees maintained the house was uninhabitable.
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Appellant raises the following claims on appeal:
(a) Whether [the trial court] committed error of law in
denying Appellant’s [m]otion to [r]einstate [c]omplaint.
(b) Whether [the trial court] erred and/or abused her
discretion in denying Appellant’s [m]otion to [r]einstate
[c]omplaint.
(c) Whether [] Appellant’s [c]omplaint should have been
reinstated because Appellant demonstrated “good cause
shown” pursuant to Magisterial District Justice Rule of Civil
Procedure 1006, which provides that “the court of common
pleas may reinstate the appeal upon good cause shown.”
(d) Whether [] Appellant’s [c]omplaint should have been
reinstated because Appellant demonstrated that the rigid
application of the rules did not serve the intended purpose
of justice and fairness but rather resulted in a harsh or
even unjust consequence, pursuant to Pennsylvania Rule
of Civil Procedure 126.
Appellant’s Brief at 5. We will address Appellant’s inter-related issues
together.
We review a trial court’s determination regarding whether Appellant
established good cause to re-instate a complaint for an abuse of discretion.
Anderson v. Centennial Homes, Inc., 594 A.2d 737, 739
(Pa.Super.1991).
The Pennsylvania Rule of Civil Procedure Governing Actions and
Proceedings Before Magisterial District Judges provides:
A party aggrieved by a judgment for money, or a
judgment affecting the delivery of possession of real
property arising out of a nonresidential lease, may appeal
therefrom within thirty (30) days after the date of the
entry of the judgment by filing with the prothonotary of
the court of common pleas a notice of appeal on a form
which shall be prescribed by the State Court Administrator
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together with a copy of the Notice of Judgment issued by
the magisterial district judge.
Pa.R.C.P.M.D.J. 1002(A).
The Rules further provide that:
If the appellant was the claimant in the action before the
magisterial district judge, he shall file a complaint within
twenty (20) days after filing his notice of appeal.
Pa.R.C.P.M.D.J. 1004(A).
Further,
Upon failure of the appellant to comply with Rule 1004A . .
. , the prothonotary shall, upon praecipe of the appellee,
mark the appeal stricken from the record. The court of
common pleas may reinstate the appeal upon good cause
shown.
Pa.R.C.P.M.D.J. 1006.
Although Appellant filed a timely appeal to the court of common pleas
of the judgment entered by the magistrate judge, it did not file a complaint
in the court of common pleas within 20 days of the notice of appeal.
Therefore, upon praecipe of Appellees, the prothonotary struck the appeal
on September 23, 2015.
On January 7, 2016, more than three months later, Appellant filed a
motion to reinstate the complaint, alleging it had good cause for the failure
to file a timely complaint. Appellant maintains it was pro se and did not
have counsel until after the complaint due date of September 3, 2015, and
notes the complaint was only 8 days late. Appellant further notes that
Appellees will not suffer prejudice if the complaint is reinstated. Further, it
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argues the Appellees had relocated, without providing a forwarding address,
and therefore could not be served.
Appellant relies on Delverme v. Pavlinsky, 592 A.2d 746
(Pa.Super.1991). In Delverme, the appellants had been represented by
counsel for the insurance company before the magistrate judge, but counsel
failed to inform them that the court had entered judgment against them.
Id. at 746-47. The appellants contacted the clerk’s office, which informed
them of the decision, and they timely filed an appeal. Id. The appellants
did not file a complaint within 20 days, and the court stuck their appeal. Id.
at 747. When they received notice that the appeal had been stricken, they
immediately retained counsel who filed a petition to reinstate the appeal.
Id. In finding the trial court should have reinstated the appeal, this Court
reasoned:
The two important factors in each of these cases advancing
the notion of liberal construction of these rules are, first,
there has been no showing of prejudice resulting from the
failure to comply strictly with the rules and, second, there
has been good cause shown for reinstating the appeal. We
note that both of those elements exist in this instance.
There is no indication in the record in this case that
appellees were in any way prejudiced by appellants failure
to file a complaint within the twenty-day time period. The
notice of appeal had been timely filed and served upon
appellees. Therefore, appellees were fully aware that an
appeal had been taken. Further, the lawsuit itself was
based upon a relatively simple set of facts, and thus
appellees knew what to expect in the complaint. Thus, we
feel confident that appellees would suffer no prejudice if
the appeal was now reinstated and appellants permitted to
file their complaint. Second, we believe that appellants
have demonstrated good cause for failing to comply with
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the rules so as to warrant a reinstatement of the appeal.
Appellants were initially unrepresented at the magistrates
level, and only received the assistance of counsel as a
result of the counterclaim. However, after the hearing,
counsel retained by appellants’ insurance carrier never
informed appellants of the decision and paid the
counterclaim without appellants’ knowledge. It was only
through their own inquiry at the magistrate’s office that
appellants learned of the decision and their right to an
appeal. Through the assistance of personnel at the
prothonotary’s office the appellants were able to prepare a
notice of appeal and file the same with the court.
However, as appellants maintain, they were not aware that
they were then required to file a complaint within twenty
days of the notice of appeal. Given that appellants had
already filed a complaint in the magistrate’s office it is not
unreasonable to conclude that they would be unaware that
it was necessary to file yet another complaint in the court
of common pleas. Appellees contend that appellants were
on notice of this requirement by virtue of the language on
the notice of appeal form which states:
If appellant was claimant (See Pa.R.C.P.D.J. No.
1001(6)) in action before District Justice he MUST
FILE A COMPLAINT within twenty (20) days after
filing his NOTICE OF APPEAL.
While such language is certainly clear to those in the legal
profession, the legal significance of filing a new complaint
may not be so readily understandable to a person with no
legal background who is working his way through this
appeal process for the very first time. Further, as soon as
appellants received notice that their appeal had been
stricken they immediately retained counsel in an effort to
rectify the situation. We believe that appellants’ actions
demonstrate an attempt to comply with all the rules for
taking an appeal from a magistrate’s decision, and do not
think that they should be punished for inadvertently failing
to comply with one of the rules, particularly when the
notice of appeal was timely filed and served upon
appellees. Thus, we conclude that good cause existed to
reinstate this appeal.
Delverme, 592 A.2d at 748-49.
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In this case, the trial court found:
Pennsylvania Rule of Civil Procedure of Magistrate District
Justice Rule 1004(a) requires a plaintiff who files an appeal
to file a complaint within twenty (20) days of the filing of
the notice of appeal.
In Delverme v. Pavlinsky, the Superior Court addressed
this issue. In Delverme, the plaintiff, acting pro se, failed
to file a timely complaint pursuant to Rule 1004(a). He
filed a Motion to Reinstate Complaint. The trial court
denied the petition and plaintiff appealed. The Superior
Court reversed the trial court concluding, in cases where
“there has been no showing of prejudice resulting from the
failure to comply strictly with the rules, and second there
has been good cause shown for reinstating the appeal”
liberal construction of these rules is warranted.
Delverme, 592 A.2d 746, 748 (Pa Super 1991). In
Delverme, the [c]ourt found that the fact that plaintiff
had been acting pro se and that “he was not aware he was
required to file a complaint within twenty (20) days of the
appeal” to be persuasive. Id.
The Superior Court discussed the trial court’s discretion in
reinstating an appeal in Hanni v. Penn Warranty Corp.
658 A.2d 1349 (Pa Super 1995). The court stated:
[]First the trial court has the discretion to determine
whether there is good cause for reinstating the
appeal. After examining the appellant’s excuse for
failing to timely file . . . the trial court is not required
but is permitted to reinstate the appeal . . .[]
Id. at 1351 (citations and footnote omitted).
Like the plaintiff in Delverme, [Appellant] asserts his
status as a pro se litigant as grounds to establish good
cause shown. The facts do not support his position.
[Appellant] is a frequent litigant in the Lackawanna County
Court system. A review of the exhibits attached to
[Appellees’] response reveals the following:
Alex Brunell, acting as agent for [Appellant], has filed
numerous pleadings on [Appellant’s] behalf since 2007.
Included in these exhibits are four (4) separate complaints
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filed by Mr. Brunell in a pro se capacity. These complaints
were filed on June 19, 2008 in 08 CV-3390, May 19, 2010
in 10 CV-844, August 5, 2010 in 10 CV-5251, and April 1,
2015 in 15 CV-2006. In addition, [Appellant] filed a
Praecipe to Strike Appeal from Magisterial District Court
Judgment on February 24, 2012 in 11 CV-5971.[] In that
case, [Appellant] filed a complaint against the defendants
in Magisterial District Court. He obtained a judgment in
his favor on September 13, 2011. The defendants filed a
timely [n]otice of [a]ppeal. [Appellant] filed a [n]otice to
[s]trike the [a]ppeal alleging the defendants failed to
comply with the notice requirements of Pa.R.C.P.M.D.J.
No. 1005(a). In his pleadings, [Appellant] attached a
photocopy of Pa.R.C.P.M.D.J. No. 1004 and No. 1005.
On February 29, 2014, the Honorable Terrance Nealon
entered an order setting a rule to show cause, why the
requested relief sought by [Appellant] should not be
granted. On May 16, 2012, the Honorable Peter O’Brien
signed an order striking the order entered by the
prothonotary striking the defendant’s appeal in 2011 CV
5971.
In light of the litigious nature of [Appellant’s] business[,]
this [c]ourt does not find his pro se status is “good cause”
to excuse a late filing pursuant to Pa.R.C.P.M.D.J. No.
1006(a).
...
[Appellant] has failed to satisfy his burden of proof of
establishing the good cause shown requirement set forth in
Delverme. Therefore, based on the above analysis, it is
the determination of this [c]ourt that [Appellant] should
not be allowed to reinstate his complaint in this matter
based on failure to conform to the Pennsylvania Rules of
Civil Procedure of Magistrate District Court. Specifically,
[Appellant] did not file the complaint in this matter within
the twenty (20) day filing requirement.
1925(a) Opinion, filed Apr. 11, 2016, at 2-4.
The trial court did not abuse its discretion in denying the motion to
reinstate the complaint. Unlike the appellants in Delverme, Appellant was
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aware it had 20 days to file a complaint, as its activity in previous litigation
established. Further, Appellant did not file a complaint with the court and
any claim that Appellees’ failure to leave a forwarding address impacted
Appellant’s ability to file a complaint is irrelevant.
Appellant also maintains that the rules should be liberally construed to
guarantee that actions are resolved in a just, speedy, and inexpensive
manner and that the procedural defect should not impede justice.
Appellant’s Brief at 14. Appellant maintains that it would be severely
prejudiced if this Court affirmed the order and that Appellees would not be
prejudiced by reversal. However, the trial court had discretion to deny
Appellant’s motion, and did not abuse its discretion, especially because
Appellant was aware of the rule and did not file a motion to reinstate the
complaint until January, even though the complaint was struck three months
earlier in September.
The trial court did not abuse its discretion when it denied Appellant’s
motion to re-instate the complaint.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2016
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