J-A07030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GUY MARTIN, GAIL ANN MARTIN : IN THE SUPERIOR COURT OF
AND TANYA L. MARTIN A/K/A TANYA : PENNSYLVANIA
LEE MARTIN-KIRKUTIS :
:
Appellants :
:
:
v. :
: No. 834 MDA 2019
:
BANK OF AMERICA, BANK OF :
AMERICA BORROWERS PROTECTION :
PLAN, AND POWER, KIRN & :
JAVARDIAN, LLC :
Appeal from the Order Entered April 18, 2019
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2014-6257
BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.
MEMORANDUM BY DUBOW, J.: FILED: MAY 26, 2020
Appellants, Guy Martin, Gail Ann Martin, and Tanya Lee Martin a/k/a
Tanya Lee Martin-Kirkutis, purport to appeal from the Order entered April 18,
2019 (“Preliminary Objections Order”), which sustained in part Preliminary
Objections filed by Bank of America and its Co-Defendants (collectively,
“Appellees”). In that Order, the trial court struck Appellants’ Complaint as
improper, pursuant to Pa.R.C.P. 1028(a)(2), because the court had previously
dismissed this matter with prejudice. We discern neither legal error nor abuse
of discretion in the trial court’s decision. Thus, we affirm.
J-A07030-20
In May 2014, Appellants commenced litigation against Appellees by Writ
of Summons.1 In December 2016, the trial court scheduled a status
conference and indicated that failure to attend the conference could result in
dismissal of Appellants’ case. Appellants failed to appear at the conference.
In January 2017, the trial court dismissed the case with prejudice due
to inactivity. Trial Ct. Order, 1/20/17 (“Dismissal Order”). The Luzerne
County Prothonotary notified all parties of the court’s decision pursuant to
Pa.R.C.P. 236. Appellants did not appeal from the Dismissal Order.
In February 2018, Appellants filed a Complaint. Appellees filed
Preliminary Objections, in relevant part asserting that the Complaint should
be stricken because the trial court had dismissed this action previously with
prejudice and because Appellants had taken no steps to reinstate it.
Preliminary Objections, 5/25/18, at 4-5. In their response, Appellants denied
any knowledge of the prior dismissal. See Answer, 8/12/18, at 6-8.
In April 2019, the court sustained in part Appellants’ Preliminary
Objections, striking the Complaint as improper. See Preliminary Objections
Order, 4/18/19, at 1 (citing Pa.R.A.P. 1028(a)(2)).2
____________________________________________
1 A cover sheet generated at the time Appellants commenced this litigation
indicates that Appellants intended to pursue claims asserting breach of
fiduciary obligations. See Docket Cover Sheet, 5/19/14.
2 The court also overruled other objections as moot. See id.
-2-
J-A07030-20
Appellants timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement.3 The trial court issued a responsive Opinion.
Appellants raise the following issue:
W[hether] the [t]rial [c]ourt should permit Appellants to refile an
Amended Complaint at the conclusion of the hearing on the Motion
to Reinstate Case and, as a result, the current order of April [18],
2019 should be amended to hold the matter in abeyance pending
the results of the pending motion and hearing on the said Motion
to Reinstate Case Terminated Pursuant to Pa.R.J.A. 1901.
Appellants’ Br. at 3 (internal footnote omitted).
We will not reverse a trial court’s decision to sustain preliminary
objections absent legal error or an abuse of discretion. Kirschner v. K & L
Gates LLP, 46 A.3d 737, 748 (Pa. Super. 2012). Where the decision of the
trial court will result in the denial of a claim, we will affirm the trial court only
in cases free and clear of doubt. Cooper v. Frankford Health Care Sys.,
Inc., 960 A.2d 134, 144 (Pa. Super. 2008).
In this case, the trial court determined that Appellants filed a Complaint
more than a year after the court had dismissed this case with prejudice. See
Trial Ct. Op., 8/30/19, at 2, 6-7. According to the trial court, Appellants could
not proceed with litigation until they first reinstated this action. See id. at 6-
____________________________________________
3 After the issuance of the Preliminary Objections Order, and more than two
years after the trial court had terminated this case administratively, Appellants
sought to reinstate it. Motion to Reinstate Case, 4/22/19. The trial court
scheduled a hearing but thereafter stayed further action on Appellant’s Motion
pending resolution of this appeal. See Trial Ct. Order, 5/23/19.
-3-
J-A07030-20
7. We agree—Appellants must seek leave to reinstate this action before
proceeding further. See Pa.R.J.A. 1901;4 Pa.R.C.P. 230.2. Therefore, we
discern no legal error or abuse of the trial court’s discretion in striking
Appellants’ Complaint as improper. Kirschner, 46 A.3d at 748; Pa.R.C.P.
1028(a)(2).
Appellants’ arguments in their brief are limited to challenges to the
Dismissal Order. See Appellants’ Br. at 11-15.5 For example, Appellants
dispute the trial court’s finding that they failed to prosecute their claims. Id.
at 12. They assert that the court failed to provide adequate notice of a status
conference and denied them an opportunity to participate in a hearing prior
to dismissal. Id. at 13. They suggest Appellees suffered no prejudice from
____________________________________________
4 The trial court dismissed this case pursuant to Pennsylvania Rule of Judicial
Administration 1901, which provides an administrative mechanism
empowering our courts of common pleas to cull from their dockets those cases
that have fallen dormant and that have remained inactive for an unreasonable
period of time. See Pa.R.J.A. 1901(a). It reflects the general policy of this
Commonwealth to promote the prompt completion of litigation. See Golab
v. Knuth, 176 A.3d 335, 340 (Pa. Super. 2017).
5 Appellants do not challenge the legal merits of the Preliminary Objections
Order. See generally Appellants’ Br. Instead, Appellants argue, in a single
paragraph, that the trial court should have delayed its decision and granted
Appellants leave to amend their Complaint. Id. at 16 (noting this
Commonwealth’s liberal policy permitting amendments to pleadings).
Although Appellants made a similar argument in a Motion to Reconsider, filed
5/17/19, Appellants filed this Motion at the same time as their Notice of
Appeal, thus affording the trial court no opportunity to consider its merits. We
therefore conclude that Appellants have waived this argument. Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”).
-4-
J-A07030-20
any delay in this litigation. Id. at 13-14. Finally, according to Appellant, they
never received notice of the Dismissal Order. Id. at 14-15.6
These arguments are not appropriate in this appeal. Rather, Appellants
must direct these arguments first to the trial court in a motion to reinstate
their action. See supra note 3; Pa.R.A.P. 302(a). Thus, we decline to address
them herein.7
Order affirmed; Application to Strike denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/26/2020
____________________________________________
6 Notwithstanding Appellants’ assertion, we note that the docket for this
matter indicates that the Luzerne County Prothonotary forwarded the
Dismissal Order pursuant to Pa.R.C.P. 236. There is no indication that this
notice was returned as undeliverable.
7 Appellees have filed an Application to Strike portions of Appellants’
Reproduced Record. See Application to Strike, 12/16/19. In light of
disposition, we deny the Application as moot.
-5-