J-S65028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ENTERPRISE RENT-A-CAR COMPANY OF                IN THE SUPERIOR COURT OF
PITTSBURGH, LLC,                                      PENNSYLVANIA

                         Appellee

                    v.

TODD KOGER,

                         Appellant                   No. 301 WDA 2016


           Appeal from the Judgment Entered on February 17, 2016
             In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): AR-14-003216

BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED NOVEMBER 15, 2016

      Appellant, Todd Koger, appeals pro se from the judgment entered on

February 17, 2016. We affirm.

      The factual background and procedural history of this case is as

follows.   On August 30, 2013, Appellant entered into a rental agreement

with Enterprise Rent-A-Car Company of Pittsburgh, LLC (“Enterprise”). That

agreement provided for a 30-day rental period at a rate of $539.95 plus

applicable taxes and fees.    The rental car was due back to Enterprise on

September 29, 2013. Appellant failed to return the rental car on that date

and failed to pay the $35.99 daily rental charge incurred thereafter.

      On October 17, 2013, Enterprise repossessed the rental car.       The

rental car had a flat tire and the keys were missing. Enterprise eventually




* Retired Senior Judge assigned to the Superior Court.
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towed the car to a local car dealership for repair of the flat tire and

replacement of the keys.

      On November 4, 2013, Enterprise commenced this breach of contract

action by filing a complaint in magisterial district court. On July 11, 2014,

the magisterial district judge entered a judgment in favor of Enterprise and

against Appellant in the amount of $812.67.      On July 30, 2014, Appellant

appealed to the Court of Common Pleas of Allegheny County (“the trial

court”).1 On August 19, 2014, Enterprise filed a complaint in the trial court.

      Thereafter,

      [o]n September 3, 2014, [Appellant] filed a [m]otion for [l]eave
      to [p]roceed [i]n [f]orma [p]auperis[, along with a notice of
      removal,] and attached Enterprise’s [c]ivil [c]omplaint, which
      was then pending before the [trial court. The United States
      District Court for the Western District of Pennsylvania (the
      “Federal Court”)] denied [Appellant’s m]otion and found that
      Enterprise’s [c]omplaint had not been properly removed to the
      [Federal] Court.




1
  Appeals from the decisions of magisterial district judges are “conducted de
novo in accordance with the Rules of Civil Procedure that would be applicable
if the action was initially commenced in the court of common pleas.” Pa.
R.C.P.D.J. 1007(A). In Allegheny County, such appeals are heard by a board
of arbitrators.     See Allegheny County Local Rule 1301(1)(C).            The
arbitrators’ decision may then be appealed “not later than thirty days after
the day on which the prothonotary makes the notation on the docket that
notice of entry of the arbitration award has been provided[.]” Pa.R.C.P.
1308(a)(1). The trial on appeal is de novo. Pa.R.C.P. 1311(a). A judgment
after that trial may be appealed to this Court. See Pa.R.A.P. 341(a).
Appellant complied with these rules in taking his three appeals in this case.




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Dillard v. Borough of Wilkinsburg, 2014 WL 6885974, *5 (W.D. Pa. Dec.

4, 2014), appeal dismissed, 14-4697 (3d Cir. Jan. 13, 2015) (citations

omitted).

      On January 21, 2015, Enterprise filed an amended complaint.           On

February 9, 2015, the trial court sustained Appellant’s preliminary objections

to Enterprise’s amended complaint. On February 26, 2015, Enterprise filed a

second amended complaint. On March 19, 2015, Appellant filed an answer

to Enterprise’s second amended complaint along with a motion for judgment

on the pleadings.     The trial court subsequently denied the motion for

judgment on the pleadings.

      On May 26, 2015, an arbitration panel awarded Enterprise $300.72.

Appellant appealed the arbitration award. The case proceeded to a jury trial

on January 27, 2016. On January 28, 2016, the jury returned a verdict in

favor of Enterprise and against Appellant in the amount of $22,541.52.

      On February 5, 2016, Appellant filed a post-trial motion. On February

12, 2016, the trial court denied the post-trial motion.      On February 17,

2016, judgment was entered in favor of Enterprise and against Appellant.

This timely appeal followed.2


2
   On March 2, 2016, the trial court mailed notice of its order requiring
Appellant to file a concise statement of errors complained of on appeal
(“concise statement”).      See Pa.R.A.P. 1925(b).     On March 23, 2016,
Appellant filed his concise statement. On April 4, 2016, the trial court issued
its Rule 1925(a) opinion. Appellant included all issues raised on appeal in
his concise statement.



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      Appellant presents five issues for our review:

      1. [Did the trial court have subject matter jurisdiction over this
         case?

      2. Was Enterprise collaterally estopped from bringing this breach
         of contract action?

      3. Did the trial court err in its jury instructions?

      4. Did the trial court err in denying Appellant’s motion for
         compulsory nonsuit?

      5. Did the trial court abuse its discretion by admitting two of
         Enterprise’s exhibits into evidence?]

Appellant’s Brief at 4.3

      In his first issue, Appellant argues that the trial court lacked subject

matter jurisdiction in this case because he removed the case to the Federal

Court.   Whether the trial court possessed subject matter jurisdiction is a

question of law; therefore, our standard of review is de novo and our scope

of review is plenary. S.K.C. v. J.L.C., 94 A.3d 402, 406 (Pa. Super. 2014)

(citation omitted).

      As the learned Federal Court explained, Appellant failed to properly

remove Enterprise’s complaint. Dillard, 2014 WL 6885974 at *5. Because

the case was not properly removed to the Federal Court, the trial court

retained subject matter jurisdiction over this case.




3
  Although Appellant only lists two issues in his statement of questions
involved, we ascertain five distinct issues in the argument section of his
brief. We list the five distinct issues in the order in which we address them.



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      In his second issue, Appellant argues that Enterprise was collaterally

estopped from pursuing its claim based upon Dillard, a separate action filed

by Appellant and his wife. Specifically, Appellant argues that (a) a judgment

entered in Dillard against Culgan Towing collaterally estopped Enterprise

from pursuing its claims in this case, and (b) Enterprise was required to

raise the claims asserted in this case as an affirmative defense in Dillard.

This argument is waived. It is well-settled that “[r]es judicata and collateral

estoppel are affirmative defenses which must be pleaded in an answer as

new matter. A defense not so raised is waived.” Hopewell Estates, Inc.

v. Kent, 646 A.2d 1192, 1194 (Pa. Super. 1994) (citations omitted);

Pa.R.C.P. 1030(a), 1032(a). In this case, Appellant did not raise the issue of

collateral estoppel as new matter in his answer. See generally Appellant’s

Answer and Motion for Judgment on the Pleadings, 3/19/15.         Accordingly,

Appellant waived his argument that Enterprise’s claims are barred by

collateral estoppel.

      In this third issue, Appellant argues that the trial court failed to

properly instruct the jury on the elements of a breach of contract action.

This argument is waived. “Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal. A general exception to the

charge to the jury will not preserve an issue for appeal. Specific exception

shall be taken to the language or omission complained of.” Pa.R.A.P. 302.

In this case, Appellant did not make a specific objection to the trial court’s



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jury instructions.   Accordingly, Appellant waived this issue for purposes of

appellate review.4

      In his fourth issue, Appellant argues that the trial court erred in

denying his motion for compulsory nonsuit.       The denial of a motion for

compulsory nonsuit, however, is not appealable. Fleishman v. Gen. Am.

Life Ins. Co., 839 A.2d 1085, 1090 (Pa. Super. 2003), appeal denied, 858

A.2d 110 (Pa. 2004); Williams v. A-Treat Bottling Co., Inc., 551 A.2d

297, 299 (Pa. Super. 1988); Fleck v. Durawood Inc., 529 A.2d 3, 5 (Pa.

Super. 1987). Therefore, Appellant is not entitled to review of this claim.

      In his final issue, Appellant argues that the trial court erred in

admitting two of Enterprise’s exhibits into evidence.       This argument is

waived. It is well-settled that “[i]f an issue has not been raised in a post-

trial motion, it is waived for appeal purposes.” Vautar v. First Nat. Bank

of Pennsylvania, 133 A.3d 6, 10 (Pa. Super. 2016) (citation omitted);

Pa.R.C.P. 227.1(b)(2). A trial court’s ruling on evidentiary matters is among

those issues that must be raised in a post-trial motion to preserve it for

appellate review. See Luzerne Cty. Flood Prot. Auth. v. Reilly, 825 A.2d

779, 782 (Pa. Cmwlth. 2003). Appellant did not raise this issue in his post-




4
  Appellant cites pages 234-245 of the notes of testimony as the place where
he preserved this issue. See Appellant’s Brief at 10. No objection is
included within those pages of the notes of testimony. Any argument that
the issue was preserved elsewhere in the record is waived. See Pa.R.A.P.
2101, 2117(c).



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trial   motion.   See generally     Appellant’s   Post-Trial   Motion,   2/5/16.

Accordingly, Appellant waived this issue for purposes of appellate review.

        Judgment affirmed.5

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2016




5
  Appellant filed with this Court proof of paying the court reporter $600.00
for transcription of the notes of testimony in this case. See Appellant’s
Notice of Cash Payment, 4/7/16. This serves as evidence that Appellant is
no longer eligible to proceed in forma pauperis. Therefore, we terminate
Appellant’s in forma pauperis status. If Appellant seeks to proceed in forma
pauperis before this Court or our Supreme Court in subsequent proceedings
related to this appeal, he must request leave to do so under Pennsylvania
Rule of Appellate Procedure 553.



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