J-A13030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL J. BARTOW, AN INDIVIDUAL              IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellant

                     v.

TRI-STAR MOTORS, INC., A BUSINESS
CORPORATION AND KEVIN B. SERGENT,
AN INDIVIDUAL

                          Appellees               No. 1084 WDA 2015


               Appeal from the Order Entered June 18, 2015
          In the Court of Common Pleas of Westmoreland County
                    Civil Division at No: 3602 of 2014


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                    FILED DECEMBER 13, 2016

     Appellant, Michael J. Bartow (“Bartow”), appeals from the June 18,

2015 order of the Court of Common Pleas of Westmoreland County (“trial

court”) granting Tri-Star Motors, Inc. (“Tri-Star”) and Kevin B. Sergent’s

(“Sergent”) (together “Appellees”) motion for judgment on the pleadings.

Upon review, we affirm.

     On December 11, 2013, Bartow filed a complaint in federal court

pursuant to 42 U.S.C. § 1983 asserting a malicious prosecution claim against

Corporal Edward R. Thomas (“Thomas”) and a malicious use of process claim

against Appellees.    These claims originate from criminal charges brought

against Bartow that were dismissed on December 12, 2011.         On July 2,

2014, Bartow’s claims against Thomas were dismissed with prejudice. The
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federal court declined to exercise supplemental jurisdiction and dismissed

the claims against Appellees without prejudice.

      On July 23, 2014, Bartow filed a complaint against Appellees in the

trial court asserting a claim of malicious use of process.     Appellees filed

preliminary objections on September 26, 2014, asserting legal insufficiency

of a pleading. On December 31, 2014, the trial court overruled Appellees’

preliminary objections.

      Appellees filed an answer with new matter on February 6, 2015,

asserting multiple affirmative defenses, including a statute of limitations

defense. Bartow replied to the new matter on February 11, 2015. On March

27, 2015, Appellees filed a motion for judgment on the pleadings and a brief

in support of the motion. Bartow filed a brief in opposition to the motion for

judgment on the pleadings on April 7, 2015.         The trial court held oral

argument on June 3, 2015, and granted Appellees’ motion on June 18, 2015.

The trial court found that Bartow failed to comply with the technical

requirements of 42 Pa.C.S.A. § 5103 (hereinafter “§ 5103”), which

preserves the filing date of a case previously filed in federal court and tolls

the statute of limitations.

      Bartow filed a timely notice of appeal on July 16, 2015. The trial court

did not order a concise statement pursuant to Pa.R.A.P. 1925(b); rather, an

order was entered on July 27, 2015, noting that the reasons for the June 18,

2015 order were explained therein.

      Bartow raises a sole issue on appeal:

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              Whether the trial court erred in granting [] Appellees’
              request for [j]udgment on the [p]leadings pursuant to 42
              Pa.C.S. § 5103 when [] Appellees neglected to raise the
              failure to comply with § 5103 as a [p]reliminary
              [o]bjection or even a [n]ew [m]atter.

Appellant’s Brief at 4. This Court’s standard of review of an order granting

judgment on the pleadings is well established.

              Appellate review of an order granting a motion for
              judgment on the pleadings is plenary. The appellate court
              will apply the same standard employed by the trial court.
              A trial court must confine its consideration to the pleadings
              and relevant documents. The court must accept as true all
              well pleaded statements of fact, admissions, and any
              documents properly attached to the pleadings presented
              by the party against whom the motion is filed, considering
              only those facts which were specifically admitted.

Southwestern Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 185

(Pa. Super. 2013) (citation omitted). “The grant of a motion for judgment

on the pleadings will be affirmed by an appellate court only when the moving

party’s right to succeed is certain and the case is so free from doubt that a

trial would clearly be a fruitless exercise.” Swift v. Milner, 538 A.2d 28, 31

(Pa. Super. 1988) (citation omitted).

        Pennsylvania statutes provide safeguards that toll the statute of

limitations for erroneously filed matters, provided the plaintiff promptly

complies with the statutory requirements.       See Williams v. F.L. Smithe

Mach. Co., 577 A.2d 907, 910 (Pa. Super. 1990). The statutory provision

at issue, § 5103 (Transfer of erroneously filed matters), provides in relevant

part:

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

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           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 thereof to the proper tribunal
           of this Commonwealth, 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 in a court or magisterial district 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.A. § 5103. This Court has noted that “the key to protection in this

case is conformity with the statutory requirements, which are not onerous in

light of the protection the statute affords.” Falcone v. Insurance Co. of

State     of   Pennsylvania,    907   A.2d   631,   640   (Pa.   Super.   2006).

Furthermore, “a litigant, upon having his case dismissed in federal court,

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.”

Williams, 577 A.2d at 910.

        Under Pennsylvania practice, the failure of a pleading to conform to

law or rule of court must be raised by way of preliminary objection.

Pa.R.C.P. 1028(2).     Affirmative defenses, like statutes of limitations, are

affirmative defenses that must be set forth in a responsive pleading under

the heading of “New Matter.” Pa.R.C.P. 1030(a). Here, it is undisputed that

Appellees included the statute of limitations as an affirmative defense under

new matter in their pleadings. They did not raise the defense of the statute

of limitations as a preliminary objection. Appellant’s issue in essence asks

us to decide whether Appellant’s failure to toll the running of the statute

limitations by not properly transferring his action from federal court to state

court under § 5103 may properly be addressed as an affirmative defense

under a motion for judgment on the pleadings. We hold that it was not error

for the trial court to do so.




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      Appellant filed his action in state court after it was dismissed in federal

court for lack of jurisdiction. Attached to Appellant’s state court complaint

was an uncertified copy of his federal complaint, as well as an uncertified

copy of the memorandum opinion and order dismissing his federal action.

Failure to comply with the transfer provisions provided under § 5103(b)(2)

to preserve the filing date of his federal court action in state court is not

disputed.   The legal effect of Appellant’s failure to properly transfer his

action from federal to state court under § 5103 was to not preserve his

federal filing date as the filing date for his state court action. Therefore, the

timeliness of Appellant’s state action was to be determined from the date of

his state court filing.   It is undisputed that by the time Appellant filed his

state court action, the applicable two-year statute of limitations for his

malicious abuse of process action had expired. Since Appellees challenged

whether Appellant’s action was time-barred under the applicable statute of

limitations, the defense was properly raised under new matter and

considered by the trial court in a motion for judgment on the pleadings. See

Ruhe v. Kroger Co., 229 A.2d 750, 751 (Pa. 1967) (appellees’ assertion of

an affirmative defense raised in a pleading is properly subject to a motion

for judgment on the pleadings).

      Appellant’s reliance upon Ferrari v. Antonacci, 689 A.2d 320 (Pa.

Super. 1997) for his argument that a failure to properly follow transfer

procedures under § 5103 must be raised by way of preliminary objection and

not by way of summary judgment is misplaced.          In Ferrari, the appellee

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alleged by way of preliminary objection that appellant’s complaint failed to

conform to law or rule of court by not promptly transferring to state court an

action dismissed by the federal court for lack of jurisdiction under § 5103.

On appeal, the appellant argued that the trial court erred because a statute

of limitations defense cannot be raised in preliminary objections and the trial

court wrongly applied § 5103. In dismissing that contention, this Court held

that a statute of limitations defense was not the basis for the appellee’s

objection, nor was it the basis for the trial court’s ruling.      The question

presented was not whether the limitation period was violated, but whether

the appellee took appropriate steps to transfer the action from federal to

state court. We therefore concluded that it was proper for the appellee to

file, and for the trial court to consider, preliminary objections raising transfer

noncompliance under § 5103.         The difference between Ferrari and the

instant case is that in Ferrari the procedure to transfer was challenged, as

opposed to the timeliness effect of the failure to properly transfer, as in this

case.     With the former, improper procedure is properly raised by way of

preliminary objection. With the latter, dismissal of an action based upon a

statute of limitations is properly raised by way of new matter.

         In the matter sub judice, Appellees properly raised a statute of

limitations defense—an affirmative defense—in their answer and new

matter. The statute of limitations defense was properly pled by Appellees in

their motion for judgment on the pleadings and properly granted by the trial

court.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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