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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ENTERPRISE RENT-A-CAR COMPANY OF IN THE SUPERIOR COURT OF
PITTSBURGH, LLC, PENNSYLVANIA
Appellee
v.
TODD KOGER,
Appellant No. 301 WDA 2016
Appeal from the Judgment Entered on February 17, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): AR-14-003216
BEFORE: LAZARUS, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 15, 2016
Appellant, Todd Koger, appeals pro se from the judgment entered on
February 17, 2016. We affirm.
The factual background and procedural history of this case is as
follows. On August 30, 2013, Appellant entered into a rental agreement
with Enterprise Rent-A-Car Company of Pittsburgh, LLC (“Enterprise”). That
agreement provided for a 30-day rental period at a rate of $539.95 plus
applicable taxes and fees. The rental car was due back to Enterprise on
September 29, 2013. Appellant failed to return the rental car on that date
and failed to pay the $35.99 daily rental charge incurred thereafter.
On October 17, 2013, Enterprise repossessed the rental car. The
rental car had a flat tire and the keys were missing. Enterprise eventually
* Retired Senior Judge assigned to the Superior Court.
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towed the car to a local car dealership for repair of the flat tire and
replacement of the keys.
On November 4, 2013, Enterprise commenced this breach of contract
action by filing a complaint in magisterial district court. On July 11, 2014,
the magisterial district judge entered a judgment in favor of Enterprise and
against Appellant in the amount of $812.67. On July 30, 2014, Appellant
appealed to the Court of Common Pleas of Allegheny County (“the trial
court”).1 On August 19, 2014, Enterprise filed a complaint in the trial court.
Thereafter,
[o]n September 3, 2014, [Appellant] filed a [m]otion for [l]eave
to [p]roceed [i]n [f]orma [p]auperis[, along with a notice of
removal,] and attached Enterprise’s [c]ivil [c]omplaint, which
was then pending before the [trial court. The United States
District Court for the Western District of Pennsylvania (the
“Federal Court”)] denied [Appellant’s m]otion and found that
Enterprise’s [c]omplaint had not been properly removed to the
[Federal] Court.
1
Appeals from the decisions of magisterial district judges are “conducted de
novo in accordance with the Rules of Civil Procedure that would be applicable
if the action was initially commenced in the court of common pleas.” Pa.
R.C.P.D.J. 1007(A). In Allegheny County, such appeals are heard by a board
of arbitrators. See Allegheny County Local Rule 1301(1)(C). The
arbitrators’ decision may then be appealed “not later than thirty days after
the day on which the prothonotary makes the notation on the docket that
notice of entry of the arbitration award has been provided[.]” Pa.R.C.P.
1308(a)(1). The trial on appeal is de novo. Pa.R.C.P. 1311(a). A judgment
after that trial may be appealed to this Court. See Pa.R.A.P. 341(a).
Appellant complied with these rules in taking his three appeals in this case.
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Dillard v. Borough of Wilkinsburg, 2014 WL 6885974, *5 (W.D. Pa. Dec.
4, 2014), appeal dismissed, 14-4697 (3d Cir. Jan. 13, 2015) (citations
omitted).
On January 21, 2015, Enterprise filed an amended complaint. On
February 9, 2015, the trial court sustained Appellant’s preliminary objections
to Enterprise’s amended complaint. On February 26, 2015, Enterprise filed a
second amended complaint. On March 19, 2015, Appellant filed an answer
to Enterprise’s second amended complaint along with a motion for judgment
on the pleadings. The trial court subsequently denied the motion for
judgment on the pleadings.
On May 26, 2015, an arbitration panel awarded Enterprise $300.72.
Appellant appealed the arbitration award. The case proceeded to a jury trial
on January 27, 2016. On January 28, 2016, the jury returned a verdict in
favor of Enterprise and against Appellant in the amount of $22,541.52.
On February 5, 2016, Appellant filed a post-trial motion. On February
12, 2016, the trial court denied the post-trial motion. On February 17,
2016, judgment was entered in favor of Enterprise and against Appellant.
This timely appeal followed.2
2
On March 2, 2016, the trial court mailed notice of its order requiring
Appellant to file a concise statement of errors complained of on appeal
(“concise statement”). See Pa.R.A.P. 1925(b). On March 23, 2016,
Appellant filed his concise statement. On April 4, 2016, the trial court issued
its Rule 1925(a) opinion. Appellant included all issues raised on appeal in
his concise statement.
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Appellant presents five issues for our review:
1. [Did the trial court have subject matter jurisdiction over this
case?
2. Was Enterprise collaterally estopped from bringing this breach
of contract action?
3. Did the trial court err in its jury instructions?
4. Did the trial court err in denying Appellant’s motion for
compulsory nonsuit?
5. Did the trial court abuse its discretion by admitting two of
Enterprise’s exhibits into evidence?]
Appellant’s Brief at 4.3
In his first issue, Appellant argues that the trial court lacked subject
matter jurisdiction in this case because he removed the case to the Federal
Court. Whether the trial court possessed subject matter jurisdiction is a
question of law; therefore, our standard of review is de novo and our scope
of review is plenary. S.K.C. v. J.L.C., 94 A.3d 402, 406 (Pa. Super. 2014)
(citation omitted).
As the learned Federal Court explained, Appellant failed to properly
remove Enterprise’s complaint. Dillard, 2014 WL 6885974 at *5. Because
the case was not properly removed to the Federal Court, the trial court
retained subject matter jurisdiction over this case.
3
Although Appellant only lists two issues in his statement of questions
involved, we ascertain five distinct issues in the argument section of his
brief. We list the five distinct issues in the order in which we address them.
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In his second issue, Appellant argues that Enterprise was collaterally
estopped from pursuing its claim based upon Dillard, a separate action filed
by Appellant and his wife. Specifically, Appellant argues that (a) a judgment
entered in Dillard against Culgan Towing collaterally estopped Enterprise
from pursuing its claims in this case, and (b) Enterprise was required to
raise the claims asserted in this case as an affirmative defense in Dillard.
This argument is waived. It is well-settled that “[r]es judicata and collateral
estoppel are affirmative defenses which must be pleaded in an answer as
new matter. A defense not so raised is waived.” Hopewell Estates, Inc.
v. Kent, 646 A.2d 1192, 1194 (Pa. Super. 1994) (citations omitted);
Pa.R.C.P. 1030(a), 1032(a). In this case, Appellant did not raise the issue of
collateral estoppel as new matter in his answer. See generally Appellant’s
Answer and Motion for Judgment on the Pleadings, 3/19/15. Accordingly,
Appellant waived his argument that Enterprise’s claims are barred by
collateral estoppel.
In this third issue, Appellant argues that the trial court failed to
properly instruct the jury on the elements of a breach of contract action.
This argument is waived. “Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal. A general exception to the
charge to the jury will not preserve an issue for appeal. Specific exception
shall be taken to the language or omission complained of.” Pa.R.A.P. 302.
In this case, Appellant did not make a specific objection to the trial court’s
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jury instructions. Accordingly, Appellant waived this issue for purposes of
appellate review.4
In his fourth issue, Appellant argues that the trial court erred in
denying his motion for compulsory nonsuit. The denial of a motion for
compulsory nonsuit, however, is not appealable. Fleishman v. Gen. Am.
Life Ins. Co., 839 A.2d 1085, 1090 (Pa. Super. 2003), appeal denied, 858
A.2d 110 (Pa. 2004); Williams v. A-Treat Bottling Co., Inc., 551 A.2d
297, 299 (Pa. Super. 1988); Fleck v. Durawood Inc., 529 A.2d 3, 5 (Pa.
Super. 1987). Therefore, Appellant is not entitled to review of this claim.
In his final issue, Appellant argues that the trial court erred in
admitting two of Enterprise’s exhibits into evidence. This argument is
waived. It is well-settled that “[i]f an issue has not been raised in a post-
trial motion, it is waived for appeal purposes.” Vautar v. First Nat. Bank
of Pennsylvania, 133 A.3d 6, 10 (Pa. Super. 2016) (citation omitted);
Pa.R.C.P. 227.1(b)(2). A trial court’s ruling on evidentiary matters is among
those issues that must be raised in a post-trial motion to preserve it for
appellate review. See Luzerne Cty. Flood Prot. Auth. v. Reilly, 825 A.2d
779, 782 (Pa. Cmwlth. 2003). Appellant did not raise this issue in his post-
4
Appellant cites pages 234-245 of the notes of testimony as the place where
he preserved this issue. See Appellant’s Brief at 10. No objection is
included within those pages of the notes of testimony. Any argument that
the issue was preserved elsewhere in the record is waived. See Pa.R.A.P.
2101, 2117(c).
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trial motion. See generally Appellant’s Post-Trial Motion, 2/5/16.
Accordingly, Appellant waived this issue for purposes of appellate review.
Judgment affirmed.5
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
5
Appellant filed with this Court proof of paying the court reporter $600.00
for transcription of the notes of testimony in this case. See Appellant’s
Notice of Cash Payment, 4/7/16. This serves as evidence that Appellant is
no longer eligible to proceed in forma pauperis. Therefore, we terminate
Appellant’s in forma pauperis status. If Appellant seeks to proceed in forma
pauperis before this Court or our Supreme Court in subsequent proceedings
related to this appeal, he must request leave to do so under Pennsylvania
Rule of Appellate Procedure 553.
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