Brown, N. v. KML Law Group, P.C.

• Court: Superior Court of Pennsylvania
• Decided: September 24, 2019
• Docket: 3570 EDA 2018
• Status: Unpublished

Opinion

J-S35031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NOEL BROWN, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : KML LAW GROUP, P.C. AND : VICTORIA CHEN, : : Appellees : No. 3570 EDA 2018

Appeal from the Order Entered October 3, 2018 in the Court of Common Pleas of Monroe County Civil Division at No(s): 9073 CV 2016

BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 24, 2019

Noel Brown (Appellant) appeals pro se from the October 3, 2018 order

dismissing his complaint with prejudice and denying his request to

reconsider the denial of his request to reinstate his complaint. Upon review,

we affirm.

We provide the following factual and procedural history. On December

5, 2016, Appellant filed a pro se complaint against KML Law Group, P.C. and

Victoria Chen (collectively, KML), claiming fraud in connection with a

mortgage foreclosure of and subsequent ejection from property located in

* Retired Senior Judge assigned to the Superior Court. J-S35031-19

Monroe County, Pennsylvania.1 Neither the complaint nor Appellant’s

praecipe for entry of appearance2 contained a certificate of service or

indicated that Appellant had effectuated service upon KML. Nonetheless,

KML filed preliminary objections on January 25, 2017. The trial court

ordered Appellant to file a brief, and Appellant complied on February 3,

2017.3 About one month later, on March 8, 2017, Appellant filed a change

of address with the court.4 That same date, the trial court sustained KML’s

preliminary objections and granted Appellant 20 days to file an amended

complaint and effectuate proper service. Appellant never filed an amended

complaint. He filed a second change of address with the court,5 along with a

purported expert report, on November 27, 2017.

1 Both the action in mortgage foreclosure and the ejection action were handled by KML. Preliminary Objections, 1/25/2017, at ¶ 9.

2 Appellant’s praecipe for entry of appearance, filed December 5, 2016, indicates his address for service as the Wayne County Correctional Facility.

3 Appellant’s brief did not contain a certificate of service, but we note that it indicated that “By Copy of this Letter Im serving same on Defendants counsel.” Rebuttal Brief, 2/3/2017, at cover page (verbatim).

4Appellant listed “Graterford Facility, Box 244, Graterford, PA 19426” as his address (Graterford Address). Praecipe for Entry of Change of Address, 3/8/2017.

5 Appellant listed “125 White Street, New York, NY 10013” as his address (White Street Address). Praecipe for Entry of Change of Address, 11/27/2017. We note that the trial court incorrectly states in its opinion that Appellant’s last updated address filed with the court was the Graterford Address. See Rule 1925(a) Opinion, 1/18/2019, at 6.

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Nearly one year later, on February 2, 2018, KML filed a motion to

dismiss action for non pros based on Appellant’s failure to file an amended

complaint as directed by the trial court. On February 9, 2018, the court

issued a rule to show cause upon Appellant as to why KML’s motion should

not be granted and directed Appellant to respond by March 5, 2018. The

trial court issued an amended order on March 12, 2018, which extended

Appellant’s deadline to respond to April 6, 2018.

Rather than responding to the court’s order, on April 9, 2018,

Appellant instead filed a motion for appointment of counsel,6 which the trial

court promptly denied. Shortly thereafter, KML requested argument on its

motion to dismiss for non pros, which the trial court denied on April 20,

2018.

On April 30, 2018, the trial court issued a scheduling order for the

June 2018 trial term and set a pretrial conference date of May 22, 2018.7

KML responded by filing a motion to make the rule absolute, based on

Appellant’s failure to respond to the trial court’s March 12, 2018 amended

rule to show cause. The trial court entered an order on May 15, 2018, which

6Appellant’s motion did not contain a certificate of service or indicate that he effectuated service upon KML. The return address on Appellant’s envelope listed his address as follows: “Noel Brown 0956, AMKC, 18-18 Hazen Street, East Elmhurst, NY 11370.” (Hazen Street Address) See Motion for Appointment of Counsel, 4/9/2018.

7It is unclear why the trial court issued this order as Appellant had not filed an amended complaint as directed in its March 8, 2017 order.

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made the amended rule absolute, granted KML’s motion to dismiss action for

non pros, canceled the pre-trial conference, struck the matter from the trial

term, and directed the prothonotary to mark the matter “terminated and

ended with prejudice.”8 Order, 5/15/2018.

On May 23, 2018, Appellant filed a petition for continuance and

petition for phone conference, in which he requested a trial continuance and

to participate in the pre-trial conference by phone.9 The trial court denied

both petitions on May 25, 2018.

On June 26, 2018, Appellant filed a motion to reinstate his

complaint.10 The trial court issued a rule to show cause upon KML as to why

8 On appeal, KML argues that the trial court’s order entered on May 15, 2018, is a final order pursuant to Pa.R.A.P. 341(b), and claims that Appellant should have appealed from the May 15, 2018 order, not the October 3, 2018 order. See KML’s Brief at 2. However, relief from judgment of non pros may be sought only by petitioning the trial court pursuant to Pa.R.C.P. 3051, and not by direct appeal to this Court. Suhautsky v. H.H. Knoebel Sons, 782 A.2d 996, 999 (Pa. 2001).

9Appellant’s petitions did not contain a certificate of service or indicate that Appellant effectuated service upon KML.

10 While there is authority for the trial court to treat Appellant’s motion to reinstate complaint as a petition to open judgment of non pros, neither the trial court nor the parties address or raise this issue, and given our disposition, as detailed infra, we need not make such a determination. See Debroff v. Coretti, 645 A.2d 859 (Pa. Super. 1994) (treating Debroff’s motion for reconsideration as a petition to open judgment of non pros pursuant to Pa.R.C.P. 3051), overruled on other grounds by Tauss v. Goldstein, 690 A.2d 742 (Pa. Super. 1997); Sahutsky, 782 A.2d at 1001 (explaining that in some circumstances a procedurally flawed petition may suffice to meet the requirements of Rule 3051); but see Krell v. Silver,

(Footnote Continued Next Page)

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Appellant’s motion to reinstate his complaint should not be granted. KML

responded on July 23, 2018. On August 1, 2018, Appellant filed a motion to

make the rule absolute,11 which the trial court denied on August 3, 2018,

because KML had responded to the court’s rule to show cause.

On August 29, 2018, Appellant filed a document entitled “Re-

consideration to reinstate [Appellant’s] complaint.”12 The trial court treated

it as a motion for reconsideration of its August 3, 2018 order denying

Appellant’s motion to make the rule absolute. See Rule 1925(a) Opinion,

1/18/2019, at 5. Upon consideration of Appellant’s request, the court

entered an order on September 6, 2018, scheduling a hearing for October 1,

2018.13

(Footnote Continued) _______________________

817 A.2d 1097 (Pa. Super. 2003) (holding Krell’s motion for reconsideration not considered functional equivalent of petition for relief from non pros judgment). We note that at the top corner of his motion to reinstate complaint, Appellant listed his address as the Hazen Street Address. Appellant’s motion did not contain a certificate of service or indicate that Appellant effectuated service upon KML.

11The return address on Appellant’s envelope listed his address as the Hazen Street Address. See Motion to Make Rule Absolute, 8/1/2018.

12 At the top corner of this filing, Appellant listed his address as the Hazen Street Address. See Re-consideration to Reinstate Plaintiff’s Complaint, 8/29/2018.

13The trial court served the September 6, 2018 order upon Appellant at the Hazen Street Address. See Order, 9/6/2018, at 1 (unpaginated); see also Rule 1925(a) Opinion, at 1/18/2019, at 5.

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On October 1, 2018, KML appeared for the hearing, but Appellant

failed to appear or to request to participate in the hearing by telephone or

alternative means. See Rule 1925(a) Opinion, 1/18/2019, at 5; see also

Order, 10/3/2018, at 1 (unpaginated). On October 3, 2018, the court

entered an order denying Appellant’s motion for reconsideration of the

August 3, 2018 order denying his motion to make the rule absolute,

dismissed the matter with prejudice, and advised Appellant of his appellate

rights.14 Order, 10/3/2018, at 1 (unpaginated).

This appeal followed. The trial court ordered Appellant to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

within 21 days and notified Appellant that any issue not properly included in

the statement shall be deemed waived. Order, 12/26/2018.15 Appellant

failed to comply. The trial court issued a statement pursuant to Rule

1925(a) on January 18, 2019.

14The trial court served Appellant the October 3, 2018 order at Hazen Street Address, but it was returned to sender as undeliverable. See Rule 1925(a) Opinion, 1/18/2019, at 6; Returned Mail, Docket Entry 58, 10/29/2018. The certified docket entries indicate that the order was resent to Appellant at the White Street Address on October 29, 2018. See Docket Entry 58, 10/29/2018. In addition, KML filed an affidavit of service which certified that KML served the order on Appellant at the White Street Address on October 10, 2018. See Affidavit of Service, 10/11/2018.

15It is unclear from the record at which address the trial court served Appellant its order.

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As a preliminary matter, we must determine whether we have

jurisdiction to entertain this appeal. A notice of appeal shall be filed within

30 days after the entry of the order from which the appeal is taken.

Pa.R.A.P. 903(a).

The timeliness of an appeal and compliance with the statutory provisions granting the right to appeal implicate an appellate court’s jurisdiction and its competency to act. Absent extraordinary circumstances, an appellate court lacks the power to enlarge or extend the time provided by statute for taking an appeal. See Pa.R.A.P. 105. Thus, an appellant’s failure to appeal timely an order generally divests the appellate court of its jurisdiction to hear the appeal.

Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (some internal

citations omitted).

Instantly, the order from which Appellant appeals, entered on October

3, 2018, notified Appellant that he had 30 days to appeal. Appellant did not

file his notice of appeal until November 26, 2018. However, as discussed

supra, the trial court served the order upon Appellant at the Hazen Street

Address, not the address listed on Appellant’s change of address form. The

envelope bearing the different address was returned to the court as

undeliverable, and the trial court re-served the order on October 29, 2018,

to the White Street Address, which is the address listed on Appellant’s most

recent praecipe for change of address. Appellant filed his notice of appeal

within 30 days of the October 29, 2018 date of service. Accordingly, we

conclude that Appellant timely filed his notice of appeal. See

Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007)

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(“Generally, an appellate court cannot extend the time for filing an appeal.

Nonetheless, this general rule does not affect the power of the courts to

grant relief in the case of fraud or breakdown in the processes of the court.”)

(citations omitted); see also Pa.R.A.P. 105(b) Note (“Subsection (b) of this

rule is not intended to affect the power of a court to grant relief in the case

of fraud or breakdown in the processes of a court.”).

We next address Appellant’s failure to file a Rule 1925(b) statement.

“Whenever a trial court orders an appellant to file a concise statement of

[errors] complained of on appeal pursuant to Rule 1925(b), the appellant

must comply in a timely manner.” Hess v. Fox Rothschild, LLP, 925 A.2d

798, 803 (Pa. Super. 2007). “[F]ailure to comply with the minimal

requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the

issues raised.” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs,

Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en banc); see also Pa.R.A.P.

1925(b)(4)(vii); Commonwealth v. Chester, 163 A.3d 470, 472 (Pa.

Super. 2017) (“It is well-settled that an appellant’s failure to comply with a

trial court’s Rule 1925(b) [o]rder results in a waiver of all issues on

appeal.”). In light of the foregoing, we conclude Appellant has waived all

issues on appeal by failing to file a court-ordered Rule 1925(b) statement,

and we affirm the trial court’s order denying his request to reconsider

reinstatement of his complaint and dismissing his complaint with prejudice.

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However, even if Appellant did not waive all issues based upon his

failure to file a Rule 1925(b) statement, he certainly has waived all issues by

his woefully deficient appellate brief. Appellant fails to comply with multiple

rules of appellate procedure. Wilkins v. Marsico, 903 A.2d 1281, 1284

(Pa. Super. 2006) (“This Court may … dismiss an appeal if the appellant fails

to conform to the requirements set forth in the Pennsylvania Rules of

Appellate Procedure.”), citing Pa.R.A.P. 2101. Compare generally

Appellant’s Brief with Pa.R.A.P. Chapter 21 (relating to briefs and

reproduced records); see also Pa.R.A.P. 2111 (requiring appellant’s brief to

contain, inter alia, a separate and distinct statement of jurisdiction; order in

question; statement of scope and standard of review; statement of

questions involved; statement of the case; summary of the argument;

argument; and conclusion with relief sought). Thus, Appellant has failed to

develop any issue in any meaningful fashion capable of review and has

waived all issues. Commonwealth v. Patterson, 180 A.3d 1217, 1229

(Pa. Super. 2018) (finding waiver because appellant’s brief failed to develop

issue in any meaningful fashion capable of appellate review); Norman for

Estate of Shearlds v. Temple Univ. Health Sys., 208 A.3d 1115, 1118-

19 (Pa. Super. 2019) (“Although this Court is willing to liberally construe

materials filed by a pro se litigant, pro se status confers no special benefit

upon the appellant. To the contrary, any person choosing to represent

himself in a legal proceeding must, to a reasonable extent, assume that his

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lack of expertise and legal training will be his undoing.”) (quoting Wilkins,

903 A.2d at 1284); Hoover v. Davila, 862 A.2d 591, 595-96 (Pa. Super.

2004) (“A pro se litigant is not absolved from complying with procedural

rules.”).

Order affirmed.16

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/19

16In light of our disposition, Appellant’s “Motion to Advance the Cause,” filed on August 21, 2019, is denied as moot.

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