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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 883 MDA 2021
:
BANK OF AMERICA, BANK OF :
AMERICA BORROWERS PROTECTION :
PLAN, AND POWER, KIRN & :
JAVARDIAN, LLC :
Appeal from the Order Entered June 21, 2021
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2014-6257
BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED: APRIL 26, 2022
Appellants, Guy Martin (“Mr. Martin”), Gail Ann Martin, and Tanya L.
Martin a/k/a Tanya Lee Martin-Kirkutis, appeal from the June 21, 2021 Order
denying Appellants’ Motion to Reinstate Case and dismissing Appellants’
Complaint with prejudice in this action alleging that Appellees, Bank of
America, Bank of America Borrowers’ Protection Plan, and Power, Kirn &
Javardian, LLC, engaged in fraud and misrepresentation and violated the
Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa.C.S.
§ 201-1 et seq. After careful review, we affirm.
While the facts of this matter are largely immaterial to our disposition,
the relevant procedural history is as follows. On May 19, 2014, Appellants
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initiated this action by filing a Writ of Summons. In March 2014, and July
2015, Appellants filed Praecipe to Re-Issue Writ of Summons.
No further docket activity occurred until the trial court issued a Notice
of Termination of Court Case. This prompted Appellant to file, on October 16,
2016, a Statement of Intention to Proceed. As a result of the docket inactivity,
the Luzerne County Court Administrator placed this case on a list of inactive
cases for which status conferences were required.
On December 22, 2016, the court entered an Order scheduling a status
conference for January 12, 2017. The lower court docket does not reflect
entry of Pa.R.C.P. 236 Notice of the Order.
At the January 12, 2017 status conference, counsel for Appellees
appeared. Counsel for Appellants, however, failed to appear. Thus, the court
dismissed the case with prejudice pursuant to Pa.R.J.A. 1901 and Pa.R.C.P.
230.2.1 The docket reflects that, on January 20, 2017, the court clerk mailed
a copy of the Order to all parties and counsel of record pursuant to Rule 236.2
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1 Pa.R.J.A. 1901 provides an administrative mechanism empowering the
courts of common pleas to cull from their dockets 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. Golab v. Knuth, 176 A.3d
335, 340 (Pa. Super. 2017). Pa.R.C.P. 230.2 provides the procedure for
implementing the policy set forth in Pa.R.J.A. 1901(a). See Pa.R.J.A.
1901(b)(3).
2 Appellants deny having received notice of the court’s Order dismissing the
case but concede a Rule 236 Notice appears on the docket. Appellants’ Brief
at 13.
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Appellants did not file an appeal or seek reconsideration of the Order and did
not file a petition to reinstate the case.
Instead, on February 1, 2018, Appellants filed a Complaint raising the
above claims. On April 5, 2018, Appellants filed a Praecipe to Reinstate
Complaint.
On May 25, 2018, Appellees filed Preliminary Objections pursuant to
Pa.R.C.P. 1028(a)(2), (3), and (4) because the court had previously dismissed
the case with prejudice. The Luzerne County Court Administrator did not
assign this matter to a judge until almost one year later, in April 2019.
On April 17, 2019, the trial court sustained Appellees’ Preliminary
Objections and struck the Complaint as improper pursuant to Rule 1028(a)(2).
Relevantly, the trial court concluded that Appellants could not proceed with
litigation until they first reinstated the action. See Trial Ct. Op., 8/30/19, at
6-7. Appellants appealed this Order and, on May 26, 2020, this Court
affirmed. See Martin v. Bank of Am., 834 MDA 2019, 2020 WL 2735562
(Pa. Super. filed May 26, 2020) (unpublished memorandum). In affirming the
trial court’s order, this Court agreed with the trial court that Pa.R.J.A. 1901
and Pa.R.C.P. 230.2 required Appellants to seek leave to reinstate the action
before proceeding further by filing a complaint. See id. at *2.
While Appellants’ appeal was pending, on April 22, 2019, Appellants filed
the instant Motion to Reinstate Case (“Motion to Reinstate”). In the Motion,
Appellants asserted that: (1) they had properly filed a Statement of Intention
to Proceed; (2) they did not receive a copy of the court’s December 22, 2016
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Order scheduling a status conference; (3) the docket shows that the Order
was not compliant with Rule 236; (4) they appeared in court for numerous
other matters on the same day of the status conference in this case and
remained unaware that this matter was scheduled to be heard that day; (5)
not all of the Appellees were represented at the status conference, which
further evidences lack of notice of the conference; (6) this case was not
included on the list of matters scheduled for hearing on January 17, 2017
provided to Appellants’ counsel by the court’s clerk on the day in question;
and (7) no party would be prejudiced by reinstatement of the case.
Importantly, Appellants did not provide any explanation for their decision to
file a Complaint instead of petitioning the court to reinstate this matter or for
their delay of more than two years in filing the instant Motion to Reinstate
Case.
On May 13, 2019, Appellees filed a response to the Motion to Reinstate.
On May 21, 2019, the trial court stayed Appellants’ Motion to Reinstate
pending appeal.
Following our disposition of Appellants’ appeal, on August 10, 2020,
Appellees filed a Motion to Lift Stay. Appellants did not file an answer. On
December 18, 2020, the trial court held a hearing on the Motion to Lift Stay
and Appellants’ Motion to Reinstate. On June 21, 2021, the court granted
Appellees’ Motion to Lift Stay and denied Appellants’ Motion to Reinstate.
This timely appeal followed. Both Appellants and the trial court have
complied with Pa.R.A.P. 1925.
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Appellants raise the following issue on appeal:
Whether the trial court erred an/or abused its discretion in
denying [Appellants’] Motion to Reinstate Case when [Appellants]
were never notified of the status conference and since no hearing
was ever held on the matter as required by law, and since there
was only 21 days between the alleged notice and the termination
status conference[?]
Appellants’ Brief at 3.
Appellants first argue that the failure of the trial court to provide Rule
236 Notice of the January 12, 2017 status conference rendered all subsequent
action in the case a legal nullity. Id. at 12-14. They conclude, therefore, that
the trial court abused its discretion in denying their Petition to Reinstate Case.
Appellants do not dispute, however, that they had notice of the court’s January
20, 2017 order terminating the case and that they did not seek reinstatement
for more than two years. Id.
We begin by noting that “[t]he question of whether an action has been
properly terminated pursuant to Pa.R.J.A. 1901, or its local rule counterpart,
rests within the discretion of the trial court and will not be disturbed absent
an abuse of that discretion or an error of law.” Tucker v. Ellwood Quality
Steels Co., 802 A.2d 663, 664 (Pa. Super. 2002) (citations omitted). “An
abuse of discretion may not be found merely because an appellate court might
have reached a different conclusion, but requires a manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Dibish v. Ameriprise Fin., Inc., 134
A.3d 1079, 1095 (Pa. Super. 2016) (citation omitted).
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Pa.R.C.P. 230.2, Termination of Inactive Cases, provides, in relevant
part, as follows:
(d)(1) If an action has been terminated pursuant to this rule, an
aggrieved party may petition the court to reinstate the action.
(2) If the petition is filed within sixty days after the entry of the
order of termination on the docket, the court shall grant the
petition and reinstate the action.
(3) If the petition is filed more than sixty days after the entry
of the order of termination on the docket, the court shall grant the
petition and reinstate the action upon a showing that
(i) the petition was timely filed following the entry of the
order for termination and
(ii) there is a reasonable explanation or a legitimate excuse
for the failure to file both
(A) the statement of intention to proceed prior to the
entry of the order of termination on the docket and,
(B) the petition to reinstate the action within sixty days
after the entry of the order of termination on the
docket.
Pa.R.C.P. 230.2(d)(1)-(3).
Critically, the rule provides that, if the aggrieved party files a petition to
reinstate the action more than 60 days after the court terminates it, the
petitioner must show, among other things, that he has a reasonable
explanation or a legitimate excuse for the failure to file the timely file the
petition to reinstate the action. Id. at (d)(3)(ii)(B).
The trial court explained that it denied Appellant’s Motion to Reinstate
because Appellants filed the motion more than 60 days after the court
dismissed the case with prejudice and Appellants failed to offer a reasonable
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explanation or legitimate excuse for the delay. Trial Ct. Op., 8/23/21, at 7.
Our review of the record confirms that Appellants waited more than two years
after the court terminated this case to file the Motion to Reinstate. In addition,
in the motion, Appellants proffered no explanation, reasonable or otherwise,
why they failed to file the motion to reinstate the case within 60 days after
the court docketed the order terminating it. Thus, they did not satisfy the
requirements for reinstatement set forth in Rule 230.2(d) and the trial court
did not abuse its discretion in denying Appellants’ Motion to Reinstate.
Appellants are, therefore, not entitled to relief.3, 4
Order affirmed.
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3 Appellants have also asserted that “[n]either Pa.R.C.P. 230.2 or Pa.R.J.A.
permit the action taken by the trial court,” see Appellants’ Brief at 14-18, and
that “Pa.R.C.P. 230.2 does not require an appeal for a petition for
reinstatement beyond 30 days as stated by the trial court,” see id. at 18-21.
Appellants have not, however, supported these assertions with citation to any
controlling authority in violation of Pa.R.A.P. 2119 (requiring an appellant’s
argument to be supported with “discussion and citation of authorities as are
deemed pertinent.”). We, therefore, decline to address them.
4 In their final argument, Appellants assert that the case law relied upon by
the trial court is inapplicable to the instant case. Appellants’ Brief at 21-22.
Appellants did not include this issue in their Statement of Questions Involved
and it is not fairly suggested thereby; thus, it is waived. See Pa.R.A.P. 2116
(“No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/26/2022
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