Janeway Towing v. Credit Connection Auto Sales

J-S50032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JANEWAY TOWING                          :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
             v.                         :
                                        :
                                        :
CREDIT CONNECTION AUTO SALES            :    No. 3175 EDA 2016

                  Appeal from the Order September 7, 2016
            In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): No. 11-02715


BEFORE:    PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                      FILED SEPTEMBER 14, 2017

      Appellant, Janeway Towing, appeals from the September 7, 2016

order terminating Appellant’s case against Appellee, Credit Connection Auto

Sales, due to inactivity. We affirm.

      The relevant facts and procedural history are as follows.    Appellant

filed suit against Appellee, seeking to collect charges allegedly owed to

Appellant related to the towing and storage of a car owned by Appellee.

Trial Ct. Op. (TCO), 1/23/2016, at 2.       In January 2011, the magisterial

district court entered a judgment of zero dollars in Appellant’s favor.

Appellant timely filed an appeal to the Court of Common Pleas in

Montgomery County.

      In February 2011, Appellant filed a complaint claiming that Appellant

owed $5,547.50 for charges incurred while towing and storing Appellee’s

car, plus costs and attorney’s fees. See Pl. Compl., 2/28/2011, at ¶¶ 4-5;
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Exhibit “A”, Invoice, 1/1/2010.

      In   March   2011,   Appellee   filed   an   answer,    new   matter,   and

counterclaim (collectively “Answer”) denying the allegations and liability for

charges, stating that it was never notified of the towing because the notice

was sent to the wrong address. See Def. Ans., 3/28/2011, at ¶ 4. Appellee

averred that as lessor of the vehicle, it is not responsible for towing fees, for

which the lessee would be solely responsible.        See id. at ¶¶ 6-9.       In a

counterclaim, Appellee alleged that Appellant converted the vehicle for its

own use, applied for an abandoned vehicle title, and attempted to sell the

vehicle for salvage without notifying Appellee of its abandoned status. See

id. at ¶¶ 17-20.    According to Appellee, Appellant’s conduct was extreme

and outrageous, and the lawsuit to collect these charges was “arbitrary,

vexatious or filed in bad faith[.]” Id. at ¶ 19. Thereafter, Appellant filed an

answer effectively denying all of Appellee’s averments.         See Pl. Reply to

New Matter and Answer to Counterclaim, at ¶¶ 6-23.

      On August 13, 2013, Appellee sent notice of proposed termination of

the case pursuant to Pa.R.C.P. 230.2. On August 19, 2013, Appellant filed a

statement of notice of intention to proceed in the matter.

      More than two years passed without any docket activity. On April 5,

2016, the prothonotary docketed a notice of proposed termination of the

case pursuant to local rule 1901. On April 12, 2016, Appellant filed a second

statement of intent to proceed.

      On    June    22,    2016,    the   trial    court     scheduled   a    case

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management/settlement conference for August 4, 2016.               See TCO at 4.

Notice of the conference was docketed and sent to the parties electronically

pursuant to local rules.       Under the terms of the case management order,

“[f]ailure to appear or otherwise comply with the provisions of this Order

shall result in the imposition of sanctions, which may include the entry of a

judgment of non-pros or an order of preclusion.” Order, 6/22/2016.

       On August 4, 2016, Appellant failed to appear as required by the case

management order.         Thereafter, on August 10, 2016, the court entered a

rule to show cause as to why the case should not be dismissed. See Order,

8/10/2016.       On August 30, 2016, Appellant untimely filed a pre-trial

statement asserting in part that counsel had not received notice in this case.

See Pre-trial Statement, 8/30/2016.            In September 2016, a hearing was

held, at which the trial court found unsatisfactory Appellant’s explanation for

failing to appear at the conference and orally dismissed the case. Notes of

Testimony (N.T.), 9/2/2016, at 13; see also Order, 9/7/2016.

       On October 7, 2016, Appellant simultaneously filed a motion for

reconsideration and timely notice of appeal.1         Thereafter, Appellant filed a

court-ordered Pa.R.A.P. 1925(b) statement.             The trial court issued a

responsive opinion. On appeal, Appellant raises the following issue:



____________________________________________


1
  See Pa.R.A.P. 108(a)(1) (day of entry of an order shall be the day the
clerk or court mails or delivers copies of the order to the parties).



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      1. Did [Appellant] present enough evidence to rebut the
         presumption that [Appellant] received notice when the court
         has two systems to send notice but both parties did not
         receive notice?

Appellant's Br. at 3.

      Appellant contends that the trial court did not send proper notice of

the case management conference.       See Appellant's Br. at 5.    The docket

indicates that neither party filed a pre-trial statement in compliance with the

case management order.      According to Appellant, this demonstrates that

neither party received the order.     Thus, Appellant argues that the court

erred when it found that notice was properly sent.

      Preliminarily, we note that Appellant risks waiver of his one-page

argument due to lack of development. See Pa.R.A.P. 302, 2101. Appellant

fails to explain the relevance of cited caselaw and does not apply the

caselaw to the facts. See Appellant's Br. at 5. Nevertheless, we note that

Appellant relies on cases that applied the mailbox rule. See Berkowitz v.

Mayflower, 317 A.2d 584, 585 (Pa. 1974); Breza v. Don Farr Moving &

Storage Co., 828 A.2d 1131, 1135 (Pa. Super. 2003). Under the mailbox

rule, proof of mailing “creates a rebuttable presumption [that it] was in fact

received.”    Berkowitz, 317 A.2d at 585.     “[T]he presumption under the

mailbox rule is not nullified solely by testimony denying receipt of the item

mailed.”     Breza, 828 A.2d at 1135.    In both of these cases, competent

evidence of proof of mailing raised the presumption that the item was

received and the denial of receipt was insufficient to overcome the

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presumption. See Berkowitz, 317 A.2d at 385; Breza, 828 A.2d at 1135.

      Essentially, Appellant challenges the sufficiency of the evidence to

support the trial court’s factual finding that notice was properly sent via

email notification. As Appellant raises an issue of fact, our scope of review is

limited to determining whether the trial court’s factual findings are

supported by competent evidence, and they will not be disturbed absent an

error of law or an abuse of discretion.     Breza, 828 A.2d at 1134 (citing

Roman Mosaic and Tile Co. v. Thomas P. Carney, Inc., 729 A.2d 73,

76) (Pa. Super. 1999). Moreover, it is not the role of the appellate court to

determine the credibility of the witnesses and weigh their testimony, but

rather credibility determinations are within the province of the trial judge.

Roman Mosaic, 729 A.2d at 76 (citing Allegheny County v. Monzo, 500

A.2d 1096 (Pa. 1985)). Where there is sufficient evidence in the record to

support the trial court’s factual conclusions, “we are precluded from

overturning that finding and must affirm, thereby paying the proper

deference to the factfinder who heard the witnesses testify and was in the

sole position to observe the demeanor of the witnesses and assess their

credibility.”   Id. (quoting DOT v. O’Connell, 555 A.3d 873, 875 (Pa.

1989)).

      At the hearing on the rule to show cause, the trial court confirmed that

notice of the case management conference scheduled for August 4, 2016,

was docketed and sent electronically on June 22, 2016, to the email address


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of Appellant’s counsel, lawobrien@aol.com.       See TCO at 5.       Further,

Appellant’s counsel acknowledged that he is an e-filer and assented to

receipt of notice in this manner. See id. The trial court found Appellant’s

denial of receipt not credible, and found that Appellant’s confusion was

based on his misunderstanding of e-filing. See id. (citing N.T. at 9). The

court concluded that the electronic notice was received based on evidence

that it was sent; however, Appellant’s counsel failed to click on the link in

the email in order to access the case management order until after the court

issued the rule to show cause. See TCO at 6. The trial court’s findings are

supported by the record.

         Appellant complains of “confusion when the Court uses both the US

mail and Email.” Appellant's Br. at 5. However, at the rule to show cause

hearing, Appellant admitted he was an e-filer, and he failed to recognize that

the local rules authorize service electronically in this manner. Here, notice

was sent electronically in a manner that conformed with local and state

rules.     See Mont. Co. R.J.L. 1901(b) (governing termination of inactive

cases); id. at 1901(c) (authorizing service of notice by mail or electronic

transmission pursuant to Pa.R.C.P. 205.4(g) (authorizing service of all legal

process other than original process by electronic transmission)).      Under

Pennsylvania Rule of Civil Procedure 205.4(g), service by electronic

transmission is acceptable procedure; service is completed when the court

sends a filing to the recipient’s email address or “to an electronic filing


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system website and an e-mail message is sent to the recipient by the

electronic filing system that the legal paper has been filed and is available

for review on the system's website.” Pa.R.C.P. 205.4(g)(2)(i)-(ii).

      Appellant failed to rebut the presumption raised by the evidence

presented at the rule to show cause hearing that notice was properly sent in

accordance with local rules. We defer to the trial court’s factual findings and

credibility determinations as they are supported by the record.           See

O’Connell, 555 A.3d at 875.          We discern no abuse of the trial court’s

discretion in dismissing the case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2017




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