J-A22006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DUNMORE EXCLUSIVES LLC                        IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

AMANDA KOCHIS AND LAWRENCE
KOCHIS

                         Appellee                  No. 263 MDA 2016


               Appeal from the Order Entered January 13, 2016
             In the Court of Common Pleas of Lackawanna County
                     Civil Division at No(s): 2015-CV-4935


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED AUGUST 30, 2016

        Appellant Dunmore Exclusives LLC appeals from the January 13, 2016

order denying its motion to reinstate the complaint filed against Appellees

Amanda Kochis and Lawrence Kochis. We affirm.

        Appellant owned property located at 150 South Sumner Avenue,

Scranton, Pennsylvania. Alex Brunell is the agent for Appellant. Appellees

rented the Sumner Avenue apartment from Appellant.

        On June 8, 2015, Appellant filed a complaint for eviction against

Appellees, maintaining Appellees had not paid rent. The Honorable Terrance

Gallagher, a magisterial district judge, scheduled a hearing for July 15,

2015.     Appellant requested a continuance, which was granted.     A new

hearing date was scheduled for August 12, 2015. Appellees did not receive

notice of the continuance or the new date, because they had moved from
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the apartment, which is where the court sent notice of the continuance.

Because Appellees appeared on July 15, 2015, the magistrate court held a

hearing on the matter, despite the fact that Appellant was not present.1 At

the conclusion of the hearing, Magistrate Gallagher entered judgment in

favor of Appellees.

       On August 14, 2015, Appellant filed a timely notice of appeal.

Although required by the Rules of Civil Procedure of the Magistrate District

Court to file a complaint in the court of common pleas within 20 days of the

filing of the notice of appeal (which would be September 3, 2015), Appellant

did not file a complaint until September 11, 2015.

       On September 23, 2015, Appellees filed a notice to strike the appeal.

On that same date, the clerk of judicial records entered an order striking the

appeal.

       On January 7, 2016, Appellant filed a motion to reinstate the

complaint. On January 13, 2016, the court denied the motion. On February

10, 2016, Appellant filed a timely notice of appeal. The trial court did not

order Appellant to file a concise statement of issues on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b), and Appellant did not do

so.   On April 11, 2016, the trial court issued an opinion pursuant to Rule

1925(a).

____________________________________________


1
  A city of Scranton housing inspector also was present at the hearing.
1925(a) Opinion at 2. Appellees maintained the house was uninhabitable.



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     Appellant raises the following claims on appeal:

        (a) Whether [the trial court] committed error of law in
        denying Appellant’s [m]otion to [r]einstate [c]omplaint.

        (b) Whether [the trial court] erred and/or abused her
        discretion in denying Appellant’s [m]otion to [r]einstate
        [c]omplaint.

        (c) Whether [] Appellant’s [c]omplaint should have been
        reinstated because Appellant demonstrated “good cause
        shown” pursuant to Magisterial District Justice Rule of Civil
        Procedure 1006, which provides that “the court of common
        pleas may reinstate the appeal upon good cause shown.”

        (d) Whether [] Appellant’s [c]omplaint should have been
        reinstated because Appellant demonstrated that the rigid
        application of the rules did not serve the intended purpose
        of justice and fairness but rather resulted in a harsh or
        even unjust consequence, pursuant to Pennsylvania Rule
        of Civil Procedure 126.

Appellant’s Brief at 5.   We will address Appellant’s inter-related issues

together.

     We review a trial court’s determination regarding whether Appellant

established good cause to re-instate a complaint for an abuse of discretion.

Anderson      v.   Centennial    Homes,     Inc.,   594    A.2d   737,   739

(Pa.Super.1991).

     The Pennsylvania Rule of Civil Procedure Governing Actions and

Proceedings Before Magisterial District Judges provides:

        A party aggrieved by a judgment for money, or a
        judgment affecting the delivery of possession of real
        property arising out of a nonresidential lease, may appeal
        therefrom within thirty (30) days after the date of the
        entry of the judgment by filing with the prothonotary of
        the court of common pleas a notice of appeal on a form
        which shall be prescribed by the State Court Administrator

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         together with a copy of the Notice of Judgment issued by
         the magisterial district judge.

Pa.R.C.P.M.D.J. 1002(A).

      The Rules further provide that:

         If the appellant was the claimant in the action before the
         magisterial district judge, he shall file a complaint within
         twenty (20) days after filing his notice of appeal.

Pa.R.C.P.M.D.J. 1004(A).

      Further,

         Upon failure of the appellant to comply with Rule 1004A . .
         . , the prothonotary shall, upon praecipe of the appellee,
         mark the appeal stricken from the record. The court of
         common pleas may reinstate the appeal upon good cause
         shown.

Pa.R.C.P.M.D.J. 1006.

      Although Appellant filed a timely appeal to the court of common pleas

of the judgment entered by the magistrate judge, it did not file a complaint

in the court of common pleas within 20 days of the notice of appeal.

Therefore, upon praecipe of Appellees, the prothonotary struck the appeal

on September 23, 2015.

      On January 7, 2016, more than three months later, Appellant filed a

motion to reinstate the complaint, alleging it had good cause for the failure

to file a timely complaint.   Appellant maintains it was pro se and did not

have counsel until after the complaint due date of September 3, 2015, and

notes the complaint was only 8 days late.       Appellant further notes that

Appellees will not suffer prejudice if the complaint is reinstated. Further, it



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argues the Appellees had relocated, without providing a forwarding address,

and therefore could not be served.

      Appellant    relies   on   Delverme   v.   Pavlinsky,   592   A.2d   746

(Pa.Super.1991).     In Delverme, the appellants had been represented by

counsel for the insurance company before the magistrate judge, but counsel

failed to inform them that the court had entered judgment against them.

Id. at 746-47. The appellants contacted the clerk’s office, which informed

them of the decision, and they timely filed an appeal. Id. The appellants

did not file a complaint within 20 days, and the court stuck their appeal. Id.

at 747. When they received notice that the appeal had been stricken, they

immediately retained counsel who filed a petition to reinstate the appeal.

Id. In finding the trial court should have reinstated the appeal, this Court

reasoned:

         The two important factors in each of these cases advancing
         the notion of liberal construction of these rules are, first,
         there has been no showing of prejudice resulting from the
         failure to comply strictly with the rules and, second, there
         has been good cause shown for reinstating the appeal. We
         note that both of those elements exist in this instance.
         There is no indication in the record in this case that
         appellees were in any way prejudiced by appellants failure
         to file a complaint within the twenty-day time period. The
         notice of appeal had been timely filed and served upon
         appellees. Therefore, appellees were fully aware that an
         appeal had been taken. Further, the lawsuit itself was
         based upon a relatively simple set of facts, and thus
         appellees knew what to expect in the complaint. Thus, we
         feel confident that appellees would suffer no prejudice if
         the appeal was now reinstated and appellants permitted to
         file their complaint. Second, we believe that appellants
         have demonstrated good cause for failing to comply with

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       the rules so as to warrant a reinstatement of the appeal.
       Appellants were initially unrepresented at the magistrates
       level, and only received the assistance of counsel as a
       result of the counterclaim. However, after the hearing,
       counsel retained by appellants’ insurance carrier never
       informed appellants of the decision and paid the
       counterclaim without appellants’ knowledge. It was only
       through their own inquiry at the magistrate’s office that
       appellants learned of the decision and their right to an
       appeal. Through the assistance of personnel at the
       prothonotary’s office the appellants were able to prepare a
       notice of appeal and file the same with the court.
       However, as appellants maintain, they were not aware that
       they were then required to file a complaint within twenty
       days of the notice of appeal. Given that appellants had
       already filed a complaint in the magistrate’s office it is not
       unreasonable to conclude that they would be unaware that
       it was necessary to file yet another complaint in the court
       of common pleas. Appellees contend that appellants were
       on notice of this requirement by virtue of the language on
       the notice of appeal form which states:

          If appellant was claimant (See Pa.R.C.P.D.J. No.
          1001(6)) in action before District Justice he MUST
          FILE A COMPLAINT within twenty (20) days after
          filing his NOTICE OF APPEAL.

       While such language is certainly clear to those in the legal
       profession, the legal significance of filing a new complaint
       may not be so readily understandable to a person with no
       legal background who is working his way through this
       appeal process for the very first time. Further, as soon as
       appellants received notice that their appeal had been
       stricken they immediately retained counsel in an effort to
       rectify the situation. We believe that appellants’ actions
       demonstrate an attempt to comply with all the rules for
       taking an appeal from a magistrate’s decision, and do not
       think that they should be punished for inadvertently failing
       to comply with one of the rules, particularly when the
       notice of appeal was timely filed and served upon
       appellees. Thus, we conclude that good cause existed to
       reinstate this appeal.

Delverme, 592 A.2d at 748-49.


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     In this case, the trial court found:

        Pennsylvania Rule of Civil Procedure of Magistrate District
        Justice Rule 1004(a) requires a plaintiff who files an appeal
        to file a complaint within twenty (20) days of the filing of
        the notice of appeal.

        In Delverme v. Pavlinsky, the Superior Court addressed
        this issue. In Delverme, the plaintiff, acting pro se, failed
        to file a timely complaint pursuant to Rule 1004(a). He
        filed a Motion to Reinstate Complaint. The trial court
        denied the petition and plaintiff appealed. The Superior
        Court reversed the trial court concluding, in cases where
        “there has been no showing of prejudice resulting from the
        failure to comply strictly with the rules, and second there
        has been good cause shown for reinstating the appeal”
        liberal construction of these rules is warranted.
        Delverme, 592 A.2d 746, 748 (Pa Super 1991).               In
        Delverme, the [c]ourt found that the fact that plaintiff
        had been acting pro se and that “he was not aware he was
        required to file a complaint within twenty (20) days of the
        appeal” to be persuasive. Id.

        The Superior Court discussed the trial court’s discretion in
        reinstating an appeal in Hanni v. Penn Warranty Corp.
        658 A.2d 1349 (Pa Super 1995). The court stated:

           []First the trial court has the discretion to determine
           whether there is good cause for reinstating the
           appeal. After examining the appellant’s excuse for
           failing to timely file . . . the trial court is not required
           but is permitted to reinstate the appeal . . .[]

        Id. at 1351 (citations and footnote omitted).

        Like the plaintiff in Delverme, [Appellant] asserts his
        status as a pro se litigant as grounds to establish good
        cause shown.       The facts do not support his position.
        [Appellant] is a frequent litigant in the Lackawanna County
        Court system.       A review of the exhibits attached to
        [Appellees’] response reveals the following:

        Alex Brunell, acting as agent for [Appellant], has filed
        numerous pleadings on [Appellant’s] behalf since 2007.
        Included in these exhibits are four (4) separate complaints

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        filed by Mr. Brunell in a pro se capacity. These complaints
        were filed on June 19, 2008 in 08 CV-3390, May 19, 2010
        in 10 CV-844, August 5, 2010 in 10 CV-5251, and April 1,
        2015 in 15 CV-2006. In addition, [Appellant] filed a
        Praecipe to Strike Appeal from Magisterial District Court
        Judgment on February 24, 2012 in 11 CV-5971.[] In that
        case, [Appellant] filed a complaint against the defendants
        in Magisterial District Court. He obtained a judgment in
        his favor on September 13, 2011. The defendants filed a
        timely [n]otice of [a]ppeal. [Appellant] filed a [n]otice to
        [s]trike the [a]ppeal alleging the defendants failed to
        comply with the notice requirements of Pa.R.C.P.M.D.J.
        No. 1005(a). In his pleadings, [Appellant] attached a
        photocopy of Pa.R.C.P.M.D.J. No. 1004 and No. 1005.

        On February 29, 2014, the Honorable Terrance Nealon
        entered an order setting a rule to show cause, why the
        requested relief sought by [Appellant] should not be
        granted. On May 16, 2012, the Honorable Peter O’Brien
        signed an order striking the order entered by the
        prothonotary striking the defendant’s appeal in 2011 CV
        5971.

        In light of the litigious nature of [Appellant’s] business[,]
        this [c]ourt does not find his pro se status is “good cause”
        to excuse a late filing pursuant to Pa.R.C.P.M.D.J. No.
        1006(a).

                                     ...

        [Appellant] has failed to satisfy his burden of proof of
        establishing the good cause shown requirement set forth in
        Delverme. Therefore, based on the above analysis, it is
        the determination of this [c]ourt that [Appellant] should
        not be allowed to reinstate his complaint in this matter
        based on failure to conform to the Pennsylvania Rules of
        Civil Procedure of Magistrate District Court. Specifically,
        [Appellant] did not file the complaint in this matter within
        the twenty (20) day filing requirement.

1925(a) Opinion, filed Apr. 11, 2016, at 2-4.

     The trial court did not abuse its discretion in denying the motion to

reinstate the complaint. Unlike the appellants in Delverme, Appellant was

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aware it had 20 days to file a complaint, as its activity in previous litigation

established. Further, Appellant did not file a complaint with the court and

any claim that Appellees’ failure to leave a forwarding address impacted

Appellant’s ability to file a complaint is irrelevant.

      Appellant also maintains that the rules should be liberally construed to

guarantee that actions are resolved in a just, speedy, and inexpensive

manner    and that      the   procedural defect should not    impede    justice.

Appellant’s Brief at 14.       Appellant maintains that it would be severely

prejudiced if this Court affirmed the order and that Appellees would not be

prejudiced by reversal.       However, the trial court had discretion to deny

Appellant’s motion, and did not abuse its discretion, especially because

Appellant was aware of the rule and did not file a motion to reinstate the

complaint until January, even though the complaint was struck three months

earlier in September.

      The trial court did not abuse its discretion when it denied Appellant’s

motion to re-instate the complaint.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016


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