J-S07004-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DREXEL UNIVERSITY : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MIRANDA KROTT : No. 1421 MDA 2024
Appeal from the Order Entered September 4, 2024 In the Court of Common Pleas of Berks County Civil Division at No(s): 22 15867
BEFORE: NICHOLS, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED JUNE 09, 2025
Appellant Drexel University appeals from the trial court’s order denying
Appellant’s motion to strike off a discontinuance. Appellant argues that the
trial court abused its discretion by denying the motion because Appellee has
breached a settlement agreement that the parties entered into before
Appellant discontinued the underlying action. We affirm.
The trial court summarized the facts and procedural history of this
matter as follows:
On November 29, 2022, [Appellant] filed a debt collection complaint against the Defendant, Miranda Krott (hereinafter referred to as “Appellee”). [In the complaint, Appellant alleged that Appellee had been enrolled as a student at Appellant’s university, Appellee had entered into a Student Financial Obligations and Tuition Repayment Agreement (Tuition Agreement) with Appellant, and that Appellee had breached the Tuition Agreement by failing to pay the amount owed under the Tuition Agreement.] The complaint sought damages in the amount of $11,623.07. Following the filing of the complaint, [the J-S07004-25
trial] court scheduled a pre-trial conference for the purposes of establishing a case management order.
On March 10, 2023, prior to the date of the scheduled pre-trial conference, Appellant filed a document with the Office of the Prothonotary of Berks County entitled praecipe to enter [a] stipulation agreement with a stipulation agreement attached, signed by counsel for [] Appellant and Appellee. The stipulation agreement that was filed did not include a request that it be entered as a judgment, nor did it include a request that it be approved by the [trial] court. Further, there was no request that the [trial] court stay the proceedings.
The stipulation agreement as filed by Appellant provided that Appellee agreed to pay the sum of $11,623.07 to Appellant in installment payments of $50.00 per month until paid in full. If the Appellee were to fail to make the payments, after notice of default, Appellant would be permitted to enter judgment upon certification of counsel in the amount of $11,623.07, less any payments received.
Having reviewed the stipulation agreement, and out of a concern of its procedural impact on the pending case, [the trial] court issued a court order stating the following:
AND NOW, this 14th day of March 2023, upon review of the praecipe to enter stipulation agreement filed on March 10, 2023, this honorable court hereby ORDERS and DIRECTS the parties shall show cause as to why the praecipe to enter stipulation agreement should not be stricken for failure to comply with state law and rules of procedure.
No less than seven (7) days before the scheduled hearing, counsel for [Appellant] shall file a memorandum of law, in the form required by the Berks County Local Rules of Civil Procedure, outlining the Pennsylvania law authorizing the filing of a praecipe to enter stipulation agreement and including an explanation of its effect on pending proceedings.
See [Trial] Court Order 3/14/2023. After the parties having had an opportunity to brief the matter and argument held, on April 5, 2023 the [trial] court issued an order striking the stipulation agreement.
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On April 12, 2023, [] Appellant filed a praecipe to settle, discontinue and end that read, “Kindly mark the above-captioned matter as settled, discontinued and ended upon payment of your costs only.”
Approximately thirteen (13) months later, [] Appellant filed a motion to reinstate case on May 3, 2024. In the motion to reinstate case, [] Appellant alleged that it had reached a settlement agreement with the Appellee that the Appellee had failed to perform. [] Appellant alleged, “[Appellant] cannot take further action to protect its legal rights without the case being reinstated and an entry of judgment.” See Motion to Reinstate Case, Paragraph No. 10.
On May 6, 2023, the [trial] court issued the following order:
AND NOW, this 6th Day of May 2024, upon consideration of [Appellant’s] Motion to Reinstate Case (hereinafter referred to as the “Motion”), this honorable court hereby ORDERS and DIRECTS that the motion is DENIED WITHOUT PREJUDICE to any other rights [Appellant] may have to enforce its rights.
See [Trial] Court Order 5/6/2024.
Almost four (4) months later, and seventeen (17) months after filing a praecipe to settle, discontinue, and end the case, [] Appellant filed a motion to strike discontinuance on August 29, 2024. In the motion to strike discontinuance, [] Appellant alleged that “[Appellant’s] rights will be prejudiced if the discontinuance is not struck off.” See Motion to Strike Off Discontinuance, Paragraph No. 12.
On September 3, 2024, [the trial] court denied the motion to strike [the] discontinuance. Thereafter, [] Appellant filed a request for reconsideration which was also denied.
Trial Ct. Op., 10/21/24, at 2-4 (some formatting altered).
Appellant then filed a timely notice of appeal. Both Appellant and the
trial court complied with Pa.R.A.P. 1925(b).
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On appeal, Appellant raises the following issue:
Did the [trial court] err in denying [Appellant’s] motion to strike the discontinuance?
Appellant’s Brief at 2 (some formatting altered).1
We begin with our well-settled standard of review:
The authority to strike off a discontinuance is vested in the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion. The trial court’s discretion, however, is not unlimited. [Pa.]R.C.P. 229(c) expressly provides for the striking of a discontinuance when necessary to protect either party from unreasonable inconvenience, vexation, harassment, expense or prejudice.
Nastasiak v. Scoville Enters., Ltd., 618 A.2d 471, 472 (Pa. Super. 1993)
(citations omitted and some formatting altered). ____________________________________________
1 We note that Appellant references the trial court’s April 5, 2023 hearing and
subsequent order striking the parties’ stipulation agreement. See Appellant’s Brief at 11-14, 16-17. To the extent that Appellant argues that the trial court erred by striking the stipulation agreement, that claim became moot when Appellant discontinued the underlying action. See Motley Crew, LLC v. Bonner Chevrolet Co., 93 A.3d 474, 476 (Pa Super. 2014) (explaining that the plaintiffs’ “discontinuance of their action rendered it moot, because there no longer was an actual case or controversy pending either before the trial court or now before this Court”).
Appellant also asserts that pursuant to the Tuition Agreement, Appellant can recover attorney’s fees and costs incurred in enforcing the Tuition Agreement, but that the settlement agreement does not contain a corresponding clause. See Appellant’s Brief at 11, 14-15. Therefore, Appellant argues it will be prejudiced if the discontinuance is not stricken because it cannot recover its attorney’s fees and costs in a separate action for a breach of the settlement agreement. See id. We conclude that this issue is waived because Appellant did not raise this issue before the trial court. See PCS Chadaga v. Torres, 252 A.3d 1154, 1158 (Pa. Super. 2021) (stating that “[a] new and different theory of relief may not be successfully advanced for the first time on appeal” (citations omitted)); see also Pa.R.A.P. 302(a).
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Rule 229 states, in relevant part:
(a) A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.
* * *
(c) The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice.
Pa.R.C.P. 229.
This Court has explained:
A discontinuance that is prejudicial to the rights of others should not be permitted to stand even if it was originally entered with the expressed consent of the court.
In determining whether to strike a discontinuance, the trial court must consider all facts and weigh equities. Further, the trial court must consider the benefits or injuries which may result to the respective sides if a discontinuance is granted.
Pohl v. NGK Metals Corp., 936 A.2d 43, 47 (Pa. Super. 2007) (citations
omitted and some formatting altered).
In its Rule 1925(a) opinion, the trial court thoroughly explained its
reasons for denying Appellant’s motion to strike off the discontinuance. See
Trial Ct. Op. at 1-14.
Following our review of the record, Appellant’s brief, 2 the relevant law,
and the trial court’s well-reasoned analysis, we affirm on the basis of the trial
____________________________________________
2 Appellee did not file a brief.
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court’s opinion. Specifically, we agree with the trial court that striking off the
discontinuance is not necessary to protect Appellant’s rights from
unreasonable inconvenience, vexation, harassment, expense, or prejudice
because Appellant can bring an action for Appellee’s alleged breach of the
settlement agreement or to institute a second action for Appellee’s alleged
breach of the Tuition Agreement. See id. at 11-14.3 Therefore, the trial court
did not abuse its discretion in denying Appellant’s motion to strike off the
discontinuance. See Nastasiak, 618 A.2d at 472. Accordingly, we affirm.4
Order affirmed. Jurisdiction relinquished.
3 We note that the trial court’s opinion contains some typographical errors. On page 8 of the trial court’s opinion, the cite to the Rules of Civil Procedure should read “Rule 229 of the Pennsylvania Rules of Civil Procedure (“A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of [the] trial.”).” See Trial Ct. Op. at 8. Further, the citations on page 13 should read “Consolidated National Bank v. McManus, 217 Pa. 190, 191-192, 66 A. 250, 250 (1907),” “Fancsali ex. rel. Fancsali v. University Health Center of Pittsburgh, 563 Pa. 439, 444-445, 761 A.2d 1159, 1161-1162 (2000),” and “Pohl v. NGK Metals Corp., 936 A.2d 43 (Pa. Super. 2007),” respectively. See id. at 13.
4 The parties are directed to attach a copy of the trial court’s opinion in the
event of further proceedings.
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Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 06/09/2025
-7- '1 01:18 PM Circulated 05/14/2025 01.18
DREXEL UNIVERSITY, DREXEL UNIVERSITY, :: IN THE COURT OF COMMON PLEAS Plaintiff/Appellant :: OF BERKS COUNTY, PENNSYLVANIA Plaintiff/Appellant ::CIVIL ACTION ACTION — LAW -LAW
V. ::NO. 22-15867
MIRANDA KROTT, Defendant/Appellee Defendant/Appellee :: ASSIGNED TO: JAMES E. GAVIN, J.
Gregory J. Allard, Gregory Esquire, Attorney Allard, Esquire, Attorney for for Plaintiff/Appellant, Plaintiff/Appellant, Drexel University Drexel University Miranda Krott, Krott, aaSelf-Represented Self-Represented Litigant, Litigant, for Defendant/Appellee
MEMORANDUM MEMORANDUM OPINION OPINION October 21, October 21, 2424 2024 James E. Gavin,I, James_E. Gavin, J.
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 INTRODUCTION INTRODUCTION
Thirteen months Thirteen months after after Drexel Drexel University discontinued this University discontinued this action without a action without a
reservation of any any rights, rights, it filed a aMotion to Reinstate Case due to an alleged failure
of Miranda of Miranda Krott to to comply comply with with the the terms terms of of a settlement agreement. a settlement agreement. Four Four months months
later, after the Court had denied the Motion to Reinstate without prejudice to Drexel
University's University's rights pursue other available remedies, rights to pursue remedies, Drexel University filed a a
Motion to Strike Discontinuance due to Miranda Krott's alleged alleged failure to comply
with the terms of a agreement. The Motion to a settlement agreement. to Strike Discontinuance was
also denied.
The The law is clear that when an action is is discontinued discontinued there there is is no longer any any
proceeding in proceeding in which which the trial trial court may exercise court may exercise jurisdiction. jurisdiction. As As a a result, result, there there was
no error in the Court's decisions and this matter should be affirmed.
1 SUMMARY OE OF FACTS FACTS
On November 29, 2022, the Plaintiff, Drexel University University (hereinafter (hereinafter referred
to "Appellant") filed to as "Appellant") filed aadebt collection complaint against the Defendant, Defendant, Miranda Miranda
Krott Krott (hereinafter (hereinafter referred to as "Appellee"). The complaint sought damages in the
amount of $ 11,623.07. Following of $11,623.07. Following the filing filing of the complaint, complaint, this Court scheduled
aapre-trial pre-trial conference for the purposes purposes of establishing a a case management order.
On March 10, 2023, prior to the date of the scheduled pre-trial conference,
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 Appellant Appellant filed aadocument with the Office of the Prothonotary of Berks County
entitled Praecipe to Enter Stipulation Agreement with aa Stipulation Agreement 2 attached, signed by by counsel for the Appellant and Appellee. The Stipulation F Agreement Agreement that was filed did not include a a request that it it be be entered as aajudgment,
nor did it include a a request that it be approved by by the Court. Further, there was no
request that the Court stay the proceedings.
Stipulation Agreement The Stipulation Agreement as filed by Appellant provided that Appellee
agreed to pay of $11,623.07 pay the sum of $ 11,623.07 to Appellant in installment payments of of $50.00
per month until paid in full. If the Appellee were to fail to make the payments, after
notice of default, Appellant Appellant would be permitted permitted to enter judgment upon certification
of counsel in the amount of of $11,623.07, $ 11,623.07, less any payments received.
2 Having Having reviewed the Stipulation Stipulation Agreement, Agreement, and out of aa concern of its
procedural impact procedural impact on the pending pending case, this Court issued aacourt order stating the
following:
AND NOW, this 14t' 14" Day of March 2023, upon review of the Praecipe to Enter Stipulation Stipulation Agreement Agreement filed on March 10, 2023, this Honorable Court hereby hereby ORDERS and DIRECTS the parties parties shall show cause as to why the Praecipe Praecipe to to Enter Stipulation Agreement should not be be stricken for failure to to comply comply with state law and rules of procedure. No less than seven seven (7) (7) days before the scheduled hearing, Counsel for for the Plaintiff shall file a a memorandum of law, in the form required by the Berks
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 County County Local Rules of Civil Procedure, outlining the Pennsylvania law authorizing authorizing the filing filing of aa Praecipe Praecipe to Enter Stipulation Stipulation Agreement and including an explanation of itsits effect on pending proceedings.
See Court Order 3/14/2023. After the parties having had an opportunity to brief the
matter and argument held, on April 5, 2023 the Court issued an order striking the
Stipulation Agreement.
On April April 12, 2023, the Appellant filed a a Praecipe to Settle, Discontinue and
End that read, read, "Kindly mark the above-captioned matter as settled, discontinued and
ended upon upon payment payment of your costs only." only."
Approximately thirteen ((13) 13) months later, the Appellant Appellant filed aaMotion to
Reinstate Case on May May 3, 2024. In the Motion to Reinstate Case, the Appellant
alleged that it had reached aa settlement agreement with the Appellee that that the
Appellee had failed to perform. The Appellant alleged, "Plaintiff cannot take further alleged, Plaintiff
3 3 protect its legal action to protect legal rights rights without the case being reinstated and an entry of
judgment." See judgment." See Motion Motion to Reinstate Reinstate Case, Case, Paragraph Paragraph No. No. 10. 10.
On May May 6, 2023, the Court issued the following order: following order
AND NOW, this 6" Day Day of May 2024, upon consideration of the Plaintiff PlaintiffssMotion to Reinstate Case Case (hereinafter (hereinafter referred to as the "Motion"), this Honorable Court hereby ORDERS and DIRECTS that the Motion is DENIED WITHOUT PREJUDICE to any other rights the Plaintiff may have to enforce its rights. rights.
See Court Order 5/6/2024.
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 Almost four (4) (4) months later, and seventeen ((17) 17) months after filing a a
Praecipe Praecipe to Settle, Settle, Discontinue, Discontinue, and and End the Appellant filed the case, the Appellant filed aaMotion Motion to
Strike Discontinuance on August August 29, 2024. In the Motion to Strike Discontinuance,
the Appellant Appellant alleged that "Plaintiff's rights will be prejudiced prejudiced if the discontinuance
is not struck off." See Motion to Strike Off Discontinuance, Paragraph Paragraph No. 12. -- On September 3, 2024, this Court denied the Motion to Strike Discontinuance.
Thereafter, the Appellant filed aarequest for reconsideration which was also denied.
appeal followed. This appeal followed.
DISCUSSION DISCUSSION
As this this case case begins begins with the filing of a the filing a Stipulation Stipulation Agreement Agreement that presents presents aa
recurring problem problem confronted by by the Courts of Common Pleas in collection cases,
the will divide this discussion the Court will discussion into multiple parts. into multiple parts. In the first first part part it will discuss
4 4
-· ···-· ··- .. ··-· -········· ··-· ·- ···- . r, " 1
stipulations stipulations filed of record, purportedly purportedly to end litigation. litigation, It will then discuss, the law
relating relating to to a authority to a court's authority to act upon upon aadiscontinued case. Finally, it it will discuss
the the facts of this this case in in light of of the the applicable law. law.
I I
Generally, any Generally, any matter that involves the individual rights or obligations
of the parties parties may may properly properly be the subject subject of a a stipulation between them, so
long as the agreement long agreement does not not interfere with the general powers, duties or
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 prerogatives prerogatives of the court. court 83 C.J.S C.JS. Stipulations $24. §24. See also George A. Fuller
v. City of Pittsburgh, Co., Inc. • Pittsburgh, 15 15 Pa.Cmwlth. Pa.CmwIth. 403, 403, 407, 327 327 A.2d 191, 191, 194
(1974). (1974), Some stipulations, however, however, directly impact impact the the court's powers, powers,
duties, and prerogatives prerogatives and as such they they are subject subject to review by by the court.
Case management management falls squarely within the powers, duties, and prerogatives
of the of the court. court.
The filing filing of the Stipulation Stipulation Agreement Agreement with the Office of the Prothonotary Prothonotary
of Berks County, in and of itself, had no dispositive dispositive procedural impact on this
litigation. litigation. Notably, Notably, the responsibility of the Office of the Prothonotary Prothonotary is purely
ministerial and it it has no no discretion to depart from to depart from its its statutory obligations.
...the powers powers wielded wielded by the the clerk of courts, courts, like like those those of the the prothonotary, prothonotary, are purely ministerial in nature. See In re Administrative Order No. 1—MI - 2003, 594 Pa. 346, 936 A.2d 1, 99 (2007). The clerk 1--MD-2003, of courts and prothonotary prothonotary are not permitted permitted to interpret statutes or challenge challenge court actions. Id. Likewise, they lack the authority to either evaluate the merits of a a litigant's litigant's pleadings pleadings or decline to accept accept aatimely s 5 notice of appeal. appeal. See Brown v.v. Levy, 621 Pa. 1, 73 A.3d A.3 d 514, 519 (2013). (2013). Far from operating as an independent reviewer and screening officer with officer with respect respect to court filings, to court filings, the the clerk of courts clerk of courts fulfills fulfills aastrictly strictly administrative function....
Commonwealth v. , Williams, 630 Pa. 169. 169, 179, 106 A.3d 583, 588 588 (2014). (2014). As the
Pennsylvania Supreme Pennsylvania Supreme Court observed, the clerk of courts and prothonotary prothonotary occupy
parallel offices, with parallel with the former administering the criminal division of the court of
common pleas pleas and the latter the civil division of the court of common pleas. The
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 Pennsylvania Pennsylvania Supreme Supreme Court chose to to apply the the same limitations to the the clerk of
courts as it does the prothonotary, prothonotary, as both offices are created by the same
constitutional provision and have substantially identical statutory grants of
authority. Id. Id. at n. 8.8. In sum, the Office of Prothonotary had the obligation to accept
the filing filing of the Stipulation Agreement Agreement despite despite the fact that it, in and of itself, had
no procedural impact on the litigation.
The Court, on the other hand, has the duty and authority to to control the
litigation pending pending before it. it. "A "A trial trial judge, in in the exercise of his inherent power to to
control litigation presiding and his duty to supervise the conduct of litigation over which he is presiding
lawyers practicing lawyers practicing before him so as to prevent prevent gross gross impropriety, has power to act
where the facts warrant it." Slater vvRimar, Inc., Ine., 462 Pa. 138, 149, 338 A.2d 584,
(1975). Further, 589 (1975). Further, "[ i]t is the policy of the unified judicial system to bring each "[iJt
pending pending matter to aafinal final conclusion as promptly promptly as possible possible consistently with the
character of the matter and the resources of the system." system." Pa.R.J.A. 1901(a). 6 ' In fulfilling fulfilling its obligations to exercise control over the management of aacase,
this Court must review all stipulations stipulations to determine their impact on the processing
of the case. Substantively, the Stipulation Agreement outlined the repayment terms
that the parties have agreed agreed upon. upon. Procedurally, it was defective because it did not
terminate the litigation or otherwise delay it.
In this matter, although the mere filing of the Stipulation Agreement may
evidence an agreement between private parties, it did not delay or terminate the
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 litigation. litigation. Quite to the contrary, the simple simple filing filing of the Stipulation Agreement had
no procedural procedural impact on the litigation pending before the court. court.. The filing of a a
Stipulation Agreement, Agreement, or a a similar document, would be the equivalent of filing with
the Office of the Prothonotary the release in a acar accident case under the mistaken
belief that it will terminate the docket or otherwise designate the litigation as
complete.
The parties had several options available to them that that would have had aa
procedural impact on the litigation. A A further option available to to the parties is to to
enter the Stipulation Agreement as aaconsent judgment. See e.g., Duquesne Duquesne Light
Co. •v. Rudolph Rudolph N. Rohn Co. Inc., 753 A.2d 286 286 (Pa.Super. (Pa.Super. 2000). Additionally, Additionally, they
could have asked the Court to approve the Stipulation Agreement and make it an
court. Finally, the parties could have filed a order of court. a motion requesting the Court to
stay stay these proceedings while the terms of the Stipulation Agreement Agreement are being
7 e.g., Keesee v. Dougherty, 230 A.3d 1128 ( followed. See e.g., Pa.Super. 2020). Lastly, (Pa.Super.
they they could have have discontinued the the litigation litigation pursuant pursuant to to Rule Rule 230 230 of the the Pennsylvania Pennsylvania
Rules of Civil Procedure Procedure ("A (A discontinuance shall be the exclusive method of
voluntary voluntary termination of an action, in whole or in part, part, by by the plaintiff before
trial. "). commencement of trial.").
It is not for the Court Coun to opine opine on which option option was most prudent for the
parties, parties, given given their their goals litigation. Nonetheless, goals in this litigation. Nonetheless, at the the time of filing filing the the
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 Stipulation Agreement, Stipulation Agreement, the parties parties did not not immediately take advantage of any of the
available available options. options. Therefore, Therefore, in light light of of the foregoing foregoing analysis, analysis, the the Court found found the the
filing filing of the Stipulation Agreement was procedurally defective. Without more, it
did not terminate or delay delay this litigation litigation and therefore it was stricken.
Within seven Within seven (7) days of (7) days of the Stipulation Agreement the Stipulation being stricken, Agreement being however, stricken, however,
the Appellant Appellant filed a a Praecipe Praecipe to Settle, Discontinue and End the litigation without
the reservation any rights. reservation of any rights. a 0
II z• A A decision by by aaparty party to voluntarily voluntarily terminate aacase has a a procedural impact impact
litigation such that the on the litigation the trial trial court can can no longer longer act act in in that that case. As the Superior
Court has observed,
The general general effect of aadiscontinuance is to terminate the action without adjudication of the merits and to place an adjudication place the plaintiff plaintiff in the same position position as if the action had never been instituted. See 1 I Goodrich Amram 2d §$ Goodrich-Amram 8 8 229:4; 229:4; see see also also Williams Studio Studio Div. Div. of Photography Photography by Tallas, Tallas, Inc. Inc. v. v Nationwide Mut.Mu. Fire Ins. Co., 380 Pa.Super.Pa.Super. 1, 550 A.2d 1333, 1335 (1988) (1988) (noting (noting in case of a a voluntary voluntary nonsuit, dismissal without prejudice operates to leave the parties operates parties as if no action had been brought brought at all). Hence, when when an action action isis discontinued, there there no no longer longer is is an an action action pending pending before before the trial court. It is is self-evident that if there is no action pending pending before a a court, there there is is no no matter matter over over which which aacourt court can can or or may exert jurisdiction. may exert jurisdiction.
Motley Motley Crew, LLC v v Bonner Chevrolet Co., Inc., 93 A.3d 476 (Pa. A.34 474, 476 Super. 2014) (Pa.Super. 2014).
See also Camp Camp Horne Self Self Storage, Storage, LLC v v Lawyers Title Insurance Insuranee Corporation,
150 A.3d 999 999 (Pa.Super. (Pa.Super 2016). 2016)
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 Applying the holding Applying holding in Motley Crew, LLC LLC v » Bonner Chevrolet Co., Inc., the
Pennsylvania Commonwealth Court Pennsylvania Commonwealth Court has has provided provided further further detailed detailed guidance guidance in the the
case of Kalmeyer Kalmeyer vvMunicipality Municipality of Penn Penn Hills, Hills, 197 A.3d 1275 197 A.34 1275 (Pa. 2018).' (Pa. Cmwlth. 2018)
In the Kalmeyer Kalmeyer case, the parties parties had agreed agreed in 1994 to settle pending pending litigation and
the case was discontinued, discontinued. 197 A.3d 4.3d at 1277. In 2012, a a petition petition to enforce the
settlement agreement was was filed filed in the the discontinued action. 197 197 A.3d 4.3d at 1278.
Although neither party had raised the issue, the Commonwealth Court detennined determined 0 0
that the trial court did not have jurisdiction jurisdiction to entertain the petition petition to enforce the E o ' settlement. 197 4.3d A.3d a1 at 1279. 1279
The Kalmeyer Court explained explained its reasoning reasoning in detail:
Ordinarily, Ordinarily, where where an action action is is discontinued, there there is no longer longer any any proceeding in which the trial court may proceeding may exercise jurisdiction. American .Express Express Bank, FSB v.v. Martin, 2018 WL 4214214 4214214 (Pa. (Pa. Super., No. 181 EDA
'Although the Superior Court is is not bound by the decisions of the Commonwealth Court, deference is often given to the wisdom and logic of its decisions. ,9 2018, September September 5, 2018), 2018), slip op. at 3; Camp Horne Horne Self Storage LLC LLC v.» Lawyers Lawyers Title Insurance Corp., Corp., 150 A.3d 999, 1001 1001 (Pa. Super. Super, 2016); Motley Crew LLC v. Bonner Chevrolet Co., Inc., Ine., 93 A.3d 474, 476 476 (Pa. (Pa. Super. 2014). " `The The general general effect of aadiscontinuance is to terminate the action without an adjudication of the merits and to place the plaintiff in the same position as if the action had never been instituted.' ... ... Absent a a pending action or the controversy, the court has no matter over which to exercise jurisdiction." American Express Express Bank, Id., Id., slip op. at 33 (emphasis omitted) omitted) (quoting (quoting Motley Motley Crew ); see Crew); see also Camp Camp Horne SelfStorage, SelfStorage, 150 A.3d at 1001. 100I.
[W]hen an action is discontinued, there no longer is an action pending before the trial court. It is self-evident that if there is no
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 action pending before a a court, there is no matter over which aa court can or may exert jurisdiction.
Motley Crew, 93 A.3d at 476; see also Camp Horne Horne SelfStorage, 150 A.3d at 1001.
Where there is a a consent decree or other court order incorporating settlement terms that require performance of future acts, an exception to this rule exists and the trial court retains jurisdiction to to enforce its order despite the discontinuance of the action. Calantzis v. Collins, 440 Pa. 354, 269 A.2d 655, 657 ( 1970) ("The (1970) (The discontinuance of the action, based on a a decree requiring a a performance of aa series of acts does not oust the count court of its jurisdiction to see to to the enforcement of that decree"); Advanced Advanced Management Management Research, Inc. Ine. v.v. Emanuel, 439 Pa. 385, 266 A.2d 673, 676 676 ((1970) 1970) ("The (The a power of a acourt count of equity to enforce its own decrees is aanecessary incident • • to the jurisdiction of the court. court.... ... The jurisdiction of the court continues for #0 the purpose purpose of enforcing the decree") ( quoting Butler (quoting Butler County v. ». Pittsburgh, Pittsburgh, H., H, B.B and N. C. Ry. and N.C. Ry. Co.,298298 Pa. 347, 347,148 148 A. 504 504 ((1929) 1929) ); Pennypack Penypack Woods Ownership Home Ownership Association v. Regan, 298 Pa.Super. 170, 444 A.2d 715, 716 (1982). Jurisdiction to 716(1982). to enforce settlement terms that are incorporated in a a court order can continue to to exist years after the underlying action is discontinued. Pennypack Pennypack Woods Home Ownership Ownership Association, 444 A.2d at 716 (trial 716 (rial court retained jurisdiction to enforce settlement entered as consent decree 10 I0 years later).
If, however, the action is simply discontinued following the parties parties' agreement to asettlement and the settlement terms are not incorporated in aa to a 10 court order, the trial court loses jurisdiction jurisdiction to act and cannot enforce the settlement on aapetition petition filed in the original, discontinued action. Camp Horne SelfStorage, Self Storage, 150 150 A.3d A.3d at at 1001-03 1001-03 (trial (trial court court did did not have jurisdiction toto rule rule on the motion to enforce settlement where the action had been discontinued over 3years over years earlier). earlier). The filing filing of aa motion or petition petition to enforce aasettlement that is not incorporated incorporated in a a court order does not revive the discontinued action, and aaparty party claiming claiming breach can obtain relief only by commencing a a new action for breach of the settlement agreementagreement byby complaint or writ of summons. Id. at 1002.
197 A. 3d a1 4.3d at 1279-1280. 1279.1280.
As will be discussed below in detail, the Appellant in this case simply
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 discontinued the case following following an agreement agreement to settle in which the settlement terms
were not incorporated in aacourt order.
111 Ill ; Applying Applying the foregoing foregoing law to to the facts of this case, as described in Section
I, the mere filing filing of the Stipulation Stipulation Agreement Agreement without more was of no procedural
effect. That is not to say it is not legally legally enforceable as that question is left for
day. Nonetheless, in the absence of it being another day. being made aacourt order or
otherwise incorporating incorporating it as part part of a a judgment judgment it had no impact on this case.
When the Appellant Appellant made the decision to discontinue this litigation without
incorporating incorporating the Stipulation Stipulation Agreement Agreement into a a court order, it brought this litigation
to to an end. As such, there was nothing more for the Court to do.
The Appellant's Appellant's rights governed by other laws. As the Kalmeyer Court rights were governed
said, "The filing of aa motion or petition to enforce a said, a settlement that is not 11 incorporated incorporated in aacourt order does not revive the discontinued action, and aaparty party
claiming breach can obtain relief only claiming only by commencing commencing a a new action for breach of
the settlement agreement agreement by complaint or writ of summons." 197 by complaint 197,4.3d A.3d at 1280. In
the alternative, Rule 231 of the Pennsylvania Pennsylvania Rules of Civil Procedure provides:
After a a discontinuance or voluntary voluntary nonsuit the plaintiff may commence aasecond action uponupon the the same same cause of action upon upon payment payment of the the costs of the costs of the former former action. action.
Pa.R.Civ.P. Pa.R.Ci.P. 231(a). 231(a)
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 For For these these reasons, when this reasons, when Court denied this Court denied the the Appellant's request to Appellant's request to re-instate re-instate
litigation its order said, "the Motion is DENIED WITHOUT PREJUDICE to this litigation
any other rights any rights the Plaintiff may may have to enforce its rights.". rights.". The Appellant's Appellant's
allegation in Paragraph allegation Paragraph No. 10 I0 of it Motion to Reinstate that said, said, "Plaintiff cannot
take further action to protect protect its legal legal rights rights without the case being being reinstated and an
entry of judgment," entry judgment," was plainly plainly wrong. wrong. As was its statement in Paragraph Paragraph No. 12 of
its Motion to Strike Discontinuance saying, saying, "Plaintiffs rights will be prejudiced if "Plaintiff's rights
the discontinuance discontinuance is not struck off."
The Appellant's Appellant's reliance upon upon Rule 229(c) 229(¢) of the Pennsylvania Rules of Civil
Procedure was misplaced. misplaced. It provides: provides:
The court, upon upon petition petition and after notice, may may strike off aa discontinuance discontinuance in order to in order to protect protect the the rights rights of any party of any party from from unreasonable unreasonable inconvenience, vexation, inconvenience, vexation, harassment, harassment, expense, expense, or or prejudice. prejudice.
12 Pa.R.Civ.P. 229(c). 229(e). This Rule does not grant grant the parties parties leave at any time and for
any reason to strike aadiscontinuance. As noted above, the Appellant has the ability any
to to institute an action institute an action on on the the breach of the breach of alleged settlement the alleged settlement agreement agreement or or to to institute institute
aasecond action. As As aaresult, there there was not not a a risk risk of unreasonable unreasonable inconvenience, inconvenience,
vexation, harassment, expense, expense, or prejudice.
In practice, In practice, Rule 229(c) of Rule 229(c) of the the Pennsylvania Pennsylvania Rules of Civil Rules of Civil Procedure Procedure is
typically by defendants. typically used by
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 A discontinuance in strict law A law must be by by leave of the court, but it is the universal practice practice Pennsylvania in Pennsylvania toto assume such leave in the first instance. This was stated to be the established practice practice as long ago as 1843, in Schuylkill Schuylkill Bank v. Macalester, Macalester, 6 6 Watts Watts & & S. 147, where it is said per curiam: curiam: `'All All the cases show that aadiscontinuance must be founded on the express or express or implied implied leave leave of the court. In In England England this this leave leave is obtained obtained onon motion in motion in the the first instance, and first instance, and here here it it is is taken taken without without the formality formality of an application, application, but subject subject to be withdrawn on cause shown for it; that is the whole difference.' The whole difference.' The causes causes which which will will move the court move the court to to withdraw withdraw itsits assumed leave assumed leave and set aside and set aside the the discontinuance discontinuance are are addressed addressed toto its its discretion, discretion, usually involve some unjust and usually unjust disadvantage disadvantage to to the the defendant, defendant, or to to some other interested party, party, such as asurety. as a 0 0 Consolidated National Bank v»v McManus, McManus, 217 Pa. Pa. 190, 191-192, 66 A. 250 zc (1907)(Emphasis Added) (1907)(Emphasis Added) quoted quoted in Fancseli ex. rel. Faneseli Fancseli vv University Health
ofPittsburgh, Center of Pittsburgh, 563 Pa. 439, 444-445, 761 A.2d 1159, 1161-1162 1161-1162 (2000). See
also Pohl v v NGK Metals Corp., 936 A.3d 43 43 ((Pa.Super. Pa. Super. 2007).
Since the Since the Appellant Appellant clearly clearly has has rights rights available available to it, there to it, there was was no i unreasonable inconvenience, vexation, harassment, expense, or prejudice. Further,
there was no error.
13 13 CONCLUSION
In light light of the Appellant's Appellant's decision to discontinue this litigation without
incorporating its Stipulation incorporating Stipulation Agreement Agreement into a a court order, this Court lost jurisdiction
to take further action on the case. For all of the reasons explained in this
Opinion, this Court respectfully requests the Honorable Superior Memorandum Opinion,
Court of Pennsylvania Pennsylvania to affirm this Court's decision decision.
»»sh- Res
,/,-�� ctfully bmitted
Received County of Berks Prothonotary's Office on 10/22/2024 11:31 AM Docket No. 22-15867 // 7:?p/i';-;e,:(N,J 4 '/