J-A13030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL J. BARTOW, AN INDIVIDUAL IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TRI-STAR MOTORS, INC., A BUSINESS
CORPORATION AND KEVIN B. SERGENT,
AN INDIVIDUAL
Appellees No. 1084 WDA 2015
Appeal from the Order Entered June 18, 2015
In the Court of Common Pleas of Westmoreland County
Civil Division at No: 3602 of 2014
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 13, 2016
Appellant, Michael J. Bartow (“Bartow”), appeals from the June 18,
2015 order of the Court of Common Pleas of Westmoreland County (“trial
court”) granting Tri-Star Motors, Inc. (“Tri-Star”) and Kevin B. Sergent’s
(“Sergent”) (together “Appellees”) motion for judgment on the pleadings.
Upon review, we affirm.
On December 11, 2013, Bartow filed a complaint in federal court
pursuant to 42 U.S.C. § 1983 asserting a malicious prosecution claim against
Corporal Edward R. Thomas (“Thomas”) and a malicious use of process claim
against Appellees. These claims originate from criminal charges brought
against Bartow that were dismissed on December 12, 2011. On July 2,
2014, Bartow’s claims against Thomas were dismissed with prejudice. The
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federal court declined to exercise supplemental jurisdiction and dismissed
the claims against Appellees without prejudice.
On July 23, 2014, Bartow filed a complaint against Appellees in the
trial court asserting a claim of malicious use of process. Appellees filed
preliminary objections on September 26, 2014, asserting legal insufficiency
of a pleading. On December 31, 2014, the trial court overruled Appellees’
preliminary objections.
Appellees filed an answer with new matter on February 6, 2015,
asserting multiple affirmative defenses, including a statute of limitations
defense. Bartow replied to the new matter on February 11, 2015. On March
27, 2015, Appellees filed a motion for judgment on the pleadings and a brief
in support of the motion. Bartow filed a brief in opposition to the motion for
judgment on the pleadings on April 7, 2015. The trial court held oral
argument on June 3, 2015, and granted Appellees’ motion on June 18, 2015.
The trial court found that Bartow failed to comply with the technical
requirements of 42 Pa.C.S.A. § 5103 (hereinafter “§ 5103”), which
preserves the filing date of a case previously filed in federal court and tolls
the statute of limitations.
Bartow filed a timely notice of appeal on July 16, 2015. The trial court
did not order a concise statement pursuant to Pa.R.A.P. 1925(b); rather, an
order was entered on July 27, 2015, noting that the reasons for the June 18,
2015 order were explained therein.
Bartow raises a sole issue on appeal:
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Whether the trial court erred in granting [] Appellees’
request for [j]udgment on the [p]leadings pursuant to 42
Pa.C.S. § 5103 when [] Appellees neglected to raise the
failure to comply with § 5103 as a [p]reliminary
[o]bjection or even a [n]ew [m]atter.
Appellant’s Brief at 4. This Court’s standard of review of an order granting
judgment on the pleadings is well established.
Appellate review of an order granting a motion for
judgment on the pleadings is plenary. The appellate court
will apply the same standard employed by the trial court.
A trial court must confine its consideration to the pleadings
and relevant documents. The court must accept as true all
well pleaded statements of fact, admissions, and any
documents properly attached to the pleadings presented
by the party against whom the motion is filed, considering
only those facts which were specifically admitted.
Southwestern Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 185
(Pa. Super. 2013) (citation omitted). “The grant of a motion for judgment
on the pleadings will be affirmed by an appellate court only when the moving
party’s right to succeed is certain and the case is so free from doubt that a
trial would clearly be a fruitless exercise.” Swift v. Milner, 538 A.2d 28, 31
(Pa. Super. 1988) (citation omitted).
Pennsylvania statutes provide safeguards that toll the statute of
limitations for erroneously filed matters, provided the plaintiff promptly
complies with the statutory requirements. See Williams v. F.L. Smithe
Mach. Co., 577 A.2d 907, 910 (Pa. Super. 1990). The statutory provision
at issue, § 5103 (Transfer of erroneously filed matters), provides in relevant
part:
(a) General rule. If an appeal or other matter is taken to or
brought in a court or magisterial district of this
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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 thereof to the proper tribunal
of this Commonwealth, 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 in a court or magisterial district 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.A. § 5103. This Court has noted that “the key to protection in this
case is conformity with the statutory requirements, which are not onerous in
light of the protection the statute affords.” Falcone v. Insurance Co. of
State of Pennsylvania, 907 A.2d 631, 640 (Pa. Super. 2006).
Furthermore, “a litigant, upon having his case dismissed in federal court,
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.”
Williams, 577 A.2d at 910.
Under Pennsylvania practice, the failure of a pleading to conform to
law or rule of court must be raised by way of preliminary objection.
Pa.R.C.P. 1028(2). Affirmative defenses, like statutes of limitations, are
affirmative defenses that must be set forth in a responsive pleading under
the heading of “New Matter.” Pa.R.C.P. 1030(a). Here, it is undisputed that
Appellees included the statute of limitations as an affirmative defense under
new matter in their pleadings. They did not raise the defense of the statute
of limitations as a preliminary objection. Appellant’s issue in essence asks
us to decide whether Appellant’s failure to toll the running of the statute
limitations by not properly transferring his action from federal court to state
court under § 5103 may properly be addressed as an affirmative defense
under a motion for judgment on the pleadings. We hold that it was not error
for the trial court to do so.
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Appellant filed his action in state court after it was dismissed in federal
court for lack of jurisdiction. Attached to Appellant’s state court complaint
was an uncertified copy of his federal complaint, as well as an uncertified
copy of the memorandum opinion and order dismissing his federal action.
Failure to comply with the transfer provisions provided under § 5103(b)(2)
to preserve the filing date of his federal court action in state court is not
disputed. The legal effect of Appellant’s failure to properly transfer his
action from federal to state court under § 5103 was to not preserve his
federal filing date as the filing date for his state court action. Therefore, the
timeliness of Appellant’s state action was to be determined from the date of
his state court filing. It is undisputed that by the time Appellant filed his
state court action, the applicable two-year statute of limitations for his
malicious abuse of process action had expired. Since Appellees challenged
whether Appellant’s action was time-barred under the applicable statute of
limitations, the defense was properly raised under new matter and
considered by the trial court in a motion for judgment on the pleadings. See
Ruhe v. Kroger Co., 229 A.2d 750, 751 (Pa. 1967) (appellees’ assertion of
an affirmative defense raised in a pleading is properly subject to a motion
for judgment on the pleadings).
Appellant’s reliance upon Ferrari v. Antonacci, 689 A.2d 320 (Pa.
Super. 1997) for his argument that a failure to properly follow transfer
procedures under § 5103 must be raised by way of preliminary objection and
not by way of summary judgment is misplaced. In Ferrari, the appellee
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alleged by way of preliminary objection that appellant’s complaint failed to
conform to law or rule of court by not promptly transferring to state court an
action dismissed by the federal court for lack of jurisdiction under § 5103.
On appeal, the appellant argued that the trial court erred because a statute
of limitations defense cannot be raised in preliminary objections and the trial
court wrongly applied § 5103. In dismissing that contention, this Court held
that a statute of limitations defense was not the basis for the appellee’s
objection, nor was it the basis for the trial court’s ruling. The question
presented was not whether the limitation period was violated, but whether
the appellee took appropriate steps to transfer the action from federal to
state court. We therefore concluded that it was proper for the appellee to
file, and for the trial court to consider, preliminary objections raising transfer
noncompliance under § 5103. The difference between Ferrari and the
instant case is that in Ferrari the procedure to transfer was challenged, as
opposed to the timeliness effect of the failure to properly transfer, as in this
case. With the former, improper procedure is properly raised by way of
preliminary objection. With the latter, dismissal of an action based upon a
statute of limitations is properly raised by way of new matter.
In the matter sub judice, Appellees properly raised a statute of
limitations defense—an affirmative defense—in their answer and new
matter. The statute of limitations defense was properly pled by Appellees in
their motion for judgment on the pleadings and properly granted by the trial
court.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2016
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