J-A08001-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HIREN PATEL,                                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

SHARON K. SMITH AND NICOLE
JOHNSON,

                         Appellees                   No. 1244 EDA 2015


                Appeal from the Order Entered March 31, 2015
                In the Court of Common Pleas of Bucks County
                      Civil Division at No(s): 2011-08715


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED JULY 22, 2016

      Hiren Patel appeals from the March 31, 2015 order granting summary

judgment and dismissing this action because it was instituted after

expiration of the applicable statute of limitations. We affirm.

      Appellant was the owner of various Subway franchises in southeastern

Pennsylvania.    On October 3, 2011, Appellant commenced this lawsuit

against Appellees, Subway franchise owners Sharon K. Smith and Nicole

Johnson, by filing a written complaint in the Court of Common Pleas of Bucks




* Retired Senior Judge assigned to the Superior Court.
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County.1     Appellant contended that, as a result of misrepresentations by

Appellees and transactions that he conducted with them in 2008, he was

misled into making certain investments within the Subway franchise

organization and was damaged thereby. He asserted fraud, conversion and

tortious interference with business relations.

       Before the instant lawsuit was filed, Appellant had commenced an

earlier    federal action in the United States District Court for the Eastern

District of Pennsylvania (“federal court”) on August 18, 2010, against

Appellees.    The federal action included the following claims for relief: 1)

conversion; 2) fraud; 3) civil conspiracy; 4) tortious interference with

business relations; 5) restraint of trade; 6) federal civil racketeering; and 7)

securities fraud.     On October 15, 2010, Appellees moved to dismiss the

federal lawsuit for lack of jurisdiction and for failure to state a claim. On July

11, 2011, the motion was granted, but the dismissal was without prejudice

and Appellant was granted leave to file an amended complaint to sustain

federal jurisdiction.     No amended pleading was filed; instead, Appellant

commenced the lawsuit on October 3, 2011, by filing a new complaint.

Appended to the complaint herein was an uncertified copy of docket entries

in the federal case.
____________________________________________


1
   Appellees obtained the removal of this action to the federal court, and
Appellant thereafter successfully asked the federal court to remand this
lawsuit back to the court of common pleas.



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       Appellees moved for summary judgment on the ground that the

causes of action pled in the case at issue, fraud, conversion, and tortious

interference with business relations, were barred by the applicable statute of

limitations.2     They noted that Appellant’s claims arose from activities

conducted from May to September 2008, and the tort causes of action were

subject to a two-year statute, yet Appellant did not file this case until

October 3, 2011.

       In opposition to the summary judgment motion based upon the

statute-of-limitations defense, Appellant argued that the filing date of the

federal case, which he averred was commenced within the applicable

limitations period, should control the issue. The trial court determined that

Appellant had not complied with the requirements of the transfer statute,

and granted summary judgment to Appellees. This appeal followed.

       Appellant presents one question for our review: “Did the lower court

commit legal error and/or abuse its discretion, by having granted summary

judgment in favor of [Appellees] as to all claims in the case asserted by

[Appellant], on the basis that all of [Appellant’s] claims were time-barred?”

Appellant’s brief at 2.       Appellant’s specific averment is that he “properly

____________________________________________


2
   The averments in the motion for summary judgment dispel Appellant’s
position that the statute of limitations question was raised by the trial court
sua sponte. Appellant’s brief at 10. Appellant relied upon the transfer
statute in an attempt to save this case from being dismissed as untimely.



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transferred his case to Bucks County from the Federal Court . . . after the

Federal Court had dismissed his federal causes of action.” Appellant’s brief

at 10. Appellant contends that this action should be considered as filed on

August 8, 2010, when Appellant instituted the federal lawsuit, and the use of

that date renders this case timely with regard to the statute of limitations.

      Our scope and standard of review when a trial court grants summary

judgment is as follows:

      [S]ummary judgment is appropriate only in those cases where
      the record clearly demonstrates that there is no genuine issue
      of material fact and that the moving party is entitled to
      judgment as a matter of law. When considering a motion for
      summary judgment, the trial court must take all facts of record
      and reasonable inferences therefrom in a light most favorable to
      the non-moving party. . . . [A]n appellate court may reverse a
      grant of summary judgment if there has been an error of law or
      an abuse of discretion.

Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015) (citations omitted).

If the statute of limitations has expired when a case was commenced, then

the trial court is considered to have properly granted summary judgment.

Chris Falcone, Inc. v. Insurance Co. of State of Pennsylvania, 907

A.2d 631 (Pa.Super. 2006).

      Section 5103 of title 42 governs when a Pennsylvania action will be

considered filed as of the date of a previously-initiated federal action:

      (a) General rule.-If an appeal or other matter is taken to or
      brought in a court or magisterial district of this 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

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     thereof to the proper tribunal of this Commonwealth, in a court
     or magisterial district 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 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. § 5103(a)-(b)(2) (emphases added). “The stated policy behind

this section is to preserve a claim or cause of action timely filed in federal

court on the ground that the claimant should not lose her opportunity to

litigate the merits of the claim simply because she erred regarding federal

jurisdiction.” Kelly v. Hazleton Gen. Hosp., 837 A.2d 490, 494 (Pa.Super.

2003) (citation omitted).

      In the present case, Appellant claims that he filed “copies of the

certified documents which he had received from the Clerk of the District

Court” with his October 3, 2011 complaint.      Appellant’s brief at 11.   Our

review of the record reveals the following.         The complaint had one

attachment, and it is a copy of the docket sheet for the federal case. The

docket sheet is not certified. Certified copies of the related pleadings, i.e.,

the complaint, presented in the federal lawsuit were not attached to the

October 3, 2011 complaint, and a certified transcript of the final judgment of

the United States court was not appended to the complaint. Indeed, when

this case was commenced, the federal action had not proceeded to final

judgment since it was dismissed without prejudice, and Appellant was given

a chance to amend to sustain federal jurisdiction.      Thus, it is clear that

Appellant did not comply with § 5103.      He instituted the present case on

October 3, 2011, by filing a complaint, and appending thereto only an

uncertified copy of the docket sheet of the federal proceeding.




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      In addition, the filing of a complaint to initiate this case, in and of

itself, rather than the filing of a certified copy of the relevant federal

pleadings, is fatal to Appellant’s position.    “We have held that a litigant

should file a certified transcript of the final judgment of the federal court and

a certified transcript of the pleadings from the federal action, rather than

new pleadings in the state court.” Chris Falcone, Inc., supra at 637.

Simply put, the “litigant shall not file new pleadings in state court,” id.

at 638 (emphasis in original), which is precisely what Appellant did herein.

      Appellant’s heavy reliance upon Williams v. F.L. Smithe Machine

Co., Inc., 577 A.2d 907, 910 (Pa.Super. 1990), is misguided. In Williams,

the question was whether the transfer had been promptly effectuated after

the federal dismissal.   Appellant herein never satisfied, at the onset, the

mandate that he file a certified copy of the relevant federal pleadings and

final judgment; instead, he fatally filed a completely new complaint. Indeed,

Williams expressly admonished that

      in order to protect the timeliness of an action under 42 Pa.C.S.A.
      § 5103, a litigant, upon having his case dismissed in federal
      court for lack of jurisdiction, 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.

Id. at 910 (emphases added).

      The pertinent case authority compels our affirmance of the trial court’s

decision. See Kelly, supra (finding that the plaintiff’s action was not saved


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under § 5103 since plaintiff filed a new complaint to institute the state action

and neglected to filed any relevant pleadings from the federal court); see

also Ferrari v. Antonacci, 689 A.2d 320 (Pa.Super. 1997). Thus, the trial

court did not abuse its discretion or commit an error of law in determining

that Appellant did not comply with § 5103 and that the filing date for the

federal litigation could not be used to compute whether Appellant brought

this case within the applicable statute of limitations.

      Appellant also argues that he should be given an opportunity to amend

his complaint.     This position overlooks the hard reality that his case is

untimely.    Appellant filed this action beyond the two-year period allowed

under the applicable statute of limitations. Amending the complaint will not

cure this defect. Appellant cannot utilize the filing date of the federal lawsuit

to compute the statute of limitations in that he did not comply with § 5103.

To   the    contrary,   he   violated   controlling   Pennsylvania   authority   by

commencing this lawsuit through the filing of a new complaint.

      Order affirmed.

      Judge Olson joins the memorandum.

      Judge Strassburger files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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