J-A21007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALEX KHEIFETZ,                                  IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

TLA CINEMA,

                          Appellee                  No. 3618 EDA 2015


              Appeal from the Order Entered October 23, 2015
           In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): August Term, 2015 No. 02400


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 17, 2016

      Appellant, Alex Kheifetz, appeals pro se from the trial court’s order

granting Appellee’s, TLA Cinema (hereinafter, “TLA”), preliminary objections

to Kheifetz’s civil complaint, which ostensibly presented a breach of contract

claim. The trial court granted TLA’s preliminary objections due to Kheifetz’s

failure to comply with Pennsylvania’s Rules of Civil Procedure. After careful

review, we affirm.

      According to averments in Kheifetz’s complaint, he had purchased two

tickets to attend an event at a TLA facility in Philadelphia scheduled for May

5, 2011.    Appellant’s Pro Se Complaint (hereinafter, “the Complaint”),

9/8/15, at 1 (unnumbered pages). Kheifetz paid $40 for the pair of tickets.

Id. On May 5, 2011, near the venue, Kheifetz attempted to resell his extra

ticket to passersby.      Id. at 2.   At some point thereafter, Kheifetz was
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confronted by TLA’s security personnel, whom Kheifetz alleges assaulted him

and confiscated his extra ticket before the police intervened. Id. Kheifetz

also claimed to have incurred medical costs as a result of his confrontation

with TLA’s security. Id. at 3.

       Kheifetz initially filed a claim before the Philadelphia Municipal Court

on May 4, 2015, which was later dismissed by that court on July 21, 2015,

on statute of limitations grounds.1 Kheifetz filed a notice of appeal from the

Municipal Court’s order on August 19, 2015. On August 24, 2015, TLA filed

a Praecipe for Rule to File Complaint.         Kheifetz then filed the Complaint on

September 8, 2015.         TLA filed preliminary objections to the Complaint on

September 30, 2015, and Kheifetz filed an answer to TLA’s preliminary

objections on October 23, 2015. That same day, the trial court issued the

following order:

              AND NOW, this 23 day of OCT, 2015, upon consideration
       of the Preliminary Objections of Defendant, TLA Cinema, to
       Plaintiff’s Complaint, and any Response thereto, it is hereby
       ORDERED AND DECREED that said Preliminary Objections are
       SUSTAINED, Plaintiff’s Complaint is hereby DISMISSED with
       prejudice.

Order, 10/23/2015, at 1 (single page) (emphasis in original).

       Kheifetz filed a timely notice of appeal to this Court. The trial court did

not order him to file a Pa.R.A.P. 1925(b) statement, and Kheifetz did not file
____________________________________________


1
  It appears that Kheifetz’s initial claim before the Municipal court sounded
solely in tort, for which the statute of limitations is two years. See 42
Pa.C.S. § 5524.



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one. The trial court issued its Rule 1925(a) opinion on February 3, 2016.

Appellant now presents the following questions for our review, reproduced

verbatim:

      1) Whether it Be Reasonably Concluded that Proper Service Of
      The Timely Appeal "Notice Of Appeal" was made to the Court Of
      Common Pleas?

      2) Whether the Dismissal Of The Complaint as well as the Civil
      Suit Against Defendant for Breach Of Contract eliminating
      Plaintiff's Due Process rights was premature? Should the Case
      Dismissal Be Vacated and Remanded back to the Court Of
      Common Pleas for Due Process (Arbitration), or Should the Case
      Dismissal Be Vacated and Remanded back to the Court Of
      Common Pleas with an order requiring Appellant to file an
      "Amended Complaint "?

      3) (Optional for Court To Consider) Issue and establish
      Precedent (via order) that a Plaintiff has a legally protected right
      to sue and recover damages resulting from a Breach Of Contract
      that occurred because a party intentionally attacked someone to
      eliminate or confiscate such contract? Or To consider the
      establishment of precedent that a Plaintiff has a legally protected
      right to sue and recover damages resulting from a Breach Of
      Contract that occurred because a party intentionally Breached
      such contract for possible financial gain?

Appellant’s Brief, at 2-3.

       Kheifetz’s first claim concerns his purported failure to serve the trial

court with a copy of his notice of appeal to the Superior Court. Kheifetz

appears to be responding to the trial court’s summary of the procedural

history of this case, wherein it notes that while it was aware that Kheifetz

had filed a timely notice of appeal with this Court, it had “not been served

with the notice” at the time of the filing of its Rule 1925(a) opinion. Trial




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Court Opinion (TCO), 2/3/16, at 2.         The opinion then makes no further

mention of this matter.

      Pa.R.A.P. 906(a) provides, in pertinent part, as follows:

      (a) General Rule. Concurrently with the filing of the notice of
      appeal under Rule 905 (filing of notice of appeal), the appellant
      shall serve copies thereof, and of any order for transcript, and
      copies of a proof of service showing compliance with this rule,
      upon:

                                       …
            (2) The judge of the court below, whether or not the
           reasons for the order appealed from already appear of
           record;
Pa.R.A.P. 906(a).

      However, Rule 902 provides that:

      An appeal permitted by law as of right from a lower court to an
      appellate court shall be taken by filing a notice of appeal with
      the clerk of the lower court within the time allowed by Rule 903
      (time for appeal). Failure of an appellant to take any step other
      than the timely filing of a notice of appeal does not affect the
      validity of the appeal, but it is subject to such action as the
      appellate court deems appropriate, which may include, but is not
      limited to, remand of the matter to the lower court so that the
      omitted procedural step may be taken.

Pa.R.A.P. 902 (emphasis added).

      Instantly, we cannot perceive any prejudice to TLA (who was served

by Kheifetz with a copy of his notice of appeal) resulting from this service

deficiency to the court, nor did this technical service deficiency appear to

hinder the trial court’s drafting of its opinion. Moreover, the trial court was

clearly aware that the notice of appeal had been timely at the time it filed its

opinion.   Accordingly, under the authority of Rule 902, we decline to take


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any further action with regard to any deficiencies attendant to Kheifetz’s

purported failure to serve the trial court with a copy of his notice of appeal.

See Meadows v. Goodman, 993 A.2d 912 (Pa. Super. 2010) (declining to

quash an appeal where the appellant failed to properly serve the trial court

with a copy of the appellant’s timely-filed notice of appeal).

      In his second claim, Kheifetz asserts that the trial court should not

have granted TLA’s preliminary objections. Essentially, Kheifetz admits that

the Complaint suffered deficiencies of form related to the Rules of Civil

Procedure, but he complains that the trial court should have allowed him to

proceed with the defective complaint, premised on the notion that it fairly

put TLA on notice of the nature of his contract claim.           Alternatively, he

asserts that the trial court should have granted him leave to amend the

Complaint.

      “Our standard of review of an order of the trial court overruling [or

granting] preliminary objections is to determine whether the trial court

committed an error of law. When considering the appropriateness of a ruling

on preliminary objections, the appellate court must apply the same standard

as the trial court.” De Lage Landen Services, Inc. v. Urb. Partn., LLC,

903 A.2d 586, 589 (Pa. Super. 2006) (quoting Mar–Eco, Inc. v. T & R &

Sons Towing & Recovery, Inc., 837 A.2d 512, 514 (Pa. Super. 2003)).

      The trial court granted TLA’s preliminary objections based the

following:


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      Plaintiff Kheifetz's Complaint was a chronology of the events that
      transpired in front of Defendant-TLA Cinema's business on May
      5, 2011. The pleading alludes to a breach of contract, but
      essentially provides a narrative of Plaintiff Kheifetz[’s]
      attempting to sell tickets in front of the TLA Cinema and the
      subsequent incident with a security guard for which the police
      were called. The pleading failed to comply with Pa.R.C.P 1022,
      which requires that every pleading be divided into paragraphs
      numbered consecutively and that each paragraph contain, as far
      as practicable, only one material allegation. The pleading also
      failed to provide the contract alluded to in the description of
      events.

TCO at 2.

      We begin our analysis by determining whether the trial court was

correct in concluding the Complaint violated Pennsylvania’s Rules of Civil

Procedure. Rule 1022 provides that, “[e]very pleading shall be divided into

paragraphs numbered consecutively. Each paragraph shall contain as far as

practicable only one material allegation.”   Pa.R.C.P. 1022.   It is clear that

the Complaint does not meet this requirement. The Complaint is not divided

into numbered paragraphs, and the paragraphs that are present assert

multiple material allegations.   There appears to have been no attempt by

Kheifetz to comply, much less substantially comply, with Rule 1022.

Although not mentioned by the trial court, for the same reasons, Kheifetz’s

complaint also runs afoul of Rule 1019(a) (“The material facts on which a

cause of action or defense is based shall be stated in a concise and summary

form.”).

      Additionally, Rule 1019(i) provides that: “When any claim or defense is

based upon a writing, the pleader shall attach a copy of the writing, or the


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material part thereof, but if the writing or copy is not accessible to the

pleader, it is sufficient so to state, together with the reason, and to set forth

the substance in writing.” Pa.R.C.P. No. 1019(i). Here, Kheifetz alleged that

the tickets constituted a contract (or contracts) with TLA, and pled a breach

of that contract (or contracts), but he failed to attach them to his complaint.

Kheifetz now complains that he could not provide the seized ticket because it

had been confiscated.2          However, his contract claim in the Complaint also

seeks to recover for losses related to the unseized ticket, and yet Kheifetz

provided no explanation in the Complaint, nor does he provide one now on

appeal, regarding why the unseized ticket could not have been provided.

       Thus, we conclude that the record in this case supports the trial court’s

findings with regard to the Complaint’s violations of the Rules of Civil

Procedure.      Thus, we now turn to whether the trial court abused its

discretion by granting TLA’s preliminary objections on that basis and,

relatedly, whether Kheifetz should have been granted leave to amend the

Complaint prior to dismissal.

       Kheifetz cites several federal authorities for the proposition that pro se

pleadings are to be construed liberally.            This is the standard for pro se

litigants   seeking    relief    in   federal   courts,   especially   with   regard   to

____________________________________________


2
 With respect to the seized ticket, we agree with Kheifetz that this is true,
by reasonable inference from the pleaded facts; however, his complaint did
not explicitly set forth his inability to conform with Rule 1019(i).



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incarcerated, pro se litigants. See e.g., Haines v. Kerner, 404 U.S. 519,

520–21 (1972) (holding that “the allegations of [a] pro se complaint” are

held “to less stringent standards than formal pleadings drafted by lawyers”).

However, Kheifetz is not incarcerated, and this Court has held that, in the

civil context, “[a] pro se litigant is not absolved from complying with

procedural rules.” Hoover v. Davila, 862 A.2d 591, 595 (Pa. Super. 2004).

Moreover, Pennsylvania’s Rules of Civil Procedure dictate that preliminary

objections may be filed on the basis that a complaint fails “to conform to law

or rule of court.” Pa.R.C.P. 1028(a)(2). Kheifetz cites to no legal authority

suggesting that his failure to conform to the Rules of Civil Procedure can

simply be overlooked.          Thus, the court did not err in granting TLA’s

preliminary objections when it failed to ignore the procedural deficiencies of

the Complaint.

      Accordingly, we now turn to consider whether Kheifetz was entitled to

amend the Complaint.

      A plaintiff is entitled to amend if the complaint doesn't exclude
      the possibility of recovery under a better statement of facts.
      This is especially true when a plaintiff's claim is dismissed on a
      defendant's demurrer[.] In the event a demurrer is sustained
      because a complaint is defective in stating a cause of action, if it
      is evident that the pleading can be cured by amendment, a court
      may not enter final judgment, but must give the pleader an
      opportunity to file an amended complaint. This is not a matter
      of discretion with the court but rather a positive duty.

Framlau Corp. v. Delaware County, 299 A.2d 335, 337 (Pa. Super. 1972)

(internal citation omitted).



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       Here, however, the basis on which the trial court granted TLA’s

preliminary objections was not in the nature of demurrer, that is, it was not

based on Kheifetz’s failure to state a claim upon which relief could be

granted.     Instead, the trial court granted TLA’s preliminary objections

because the Complaint failed to adhere to Pennsylvania’s Rules of Civil

Procedure. As such, the trial court was not devoid of discretion or subject to

a “positive duty” to permit Kheifetz to amend the Complaint. Id.

       In any event, there is nothing of record indicating that Kheifetz ever

sought leave to amend the Complaint,3 nor does it appear that he ever

attempted to file an amended complaint as permitted by Rule 1028(c)(1) (“A

party may file an amended pleading as of course within twenty days after

service of a copy of preliminary objections. If a party has filed an amended

pleading as of course, the preliminary objections to the original pleading

shall be deemed moot.”).          Kheifetz is, therefore, intimating that the trial

court should have sua sponte directed him to amend the Complaint despite

his failure to request such relief, and despite his failure to avail himself of

the relief already available under Rule 1028(c)(1).

____________________________________________


3
  In his answer to TLA’s preliminary objections, Kheifetz not only failed to
request leave to amend the Complaint, he essentially requested relief
inconsistent with a request for leave to amend. See Kheifetz’s Answer to
TLA’s Preliminary Objections, 10/23/15, at 8 (unnumbered pages) (seeking
to “[p]ermit Plaintiff’s Complaint[] to stand based on a clear understanding
of the damages requested and to proceed to mandatory mediation and
possible arbitration[.]”) (unnecessary capitalization omitted).



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      We are aware of no authority suggesting that a trial court is under an

obligation to sua sponte direct litigants to amend their pro se complaints

when those complaints fail to adhere to Pennsylvania’s Rules of Civil

Procedure. To the contrary, in Desanctis v. Pritchard, 803 A.2d 230 (Pa.

Super. 2002), the appellant argued that the trial court had “erred when it

dismissed his Complaint rather than granting him leave to amend.” Id. at

233. The appellant in Desanctis “never filed an amended pleading during

the period following service, and thereafter never requested leave to

amend.”     Id. (referencing the unconditional right to amend a complaint

following    preliminary    objections     pursuant       to    Rule      1028(c)(1)).

Consequently, we held that “[h]aving never sought the remedy, [the

a]ppellant may not now complain that the trial court erred in failing to grant

it.” Id.

      Although Desanctis did not involve a pro se litigant, we see no basis

for deviating from its holding.      Kheifetz did not take advantage of Rule

1028(c)(1), which permitted him to amend the Complaint “as of course

within twenty days after service of a copy of preliminary objections[,]” nor

did he ever request leave to amend the Complaint in the trial court.

Instead,    Kheifetz   requested   that   the   trial   court   proceed    under   his

procedurally defective complaint. We are aware of no authority permitting

the trial court to simply ignore procedural deficiencies in a complaint when

such deficiencies are raised in preliminary objections.         Kheifetz was made


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aware of those deficiencies, yet failed to take advantage of the extremely

permissive nature of Rule 1028(c)(1) to correct them.        Accordingly, we

conclude that the trial court did not commit an error of law in granting TLA’s

preliminary objections.

      Finally, because of our disposition with regard to Kheifetz’s second

claim, it would be improper to address his third and, therefore, we decline to

do so.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




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