J-S50032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JANEWAY TOWING : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CREDIT CONNECTION AUTO SALES : No. 3175 EDA 2016
Appeal from the Order September 7, 2016 In the Court of Common Pleas of Montgomery County Civil Division at No(s): No. 11-02715
BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 14, 2017
Appellant, Janeway Towing, appeals from the September 7, 2016
order terminating Appellant’s case against Appellee, Credit Connection Auto
Sales, due to inactivity. We affirm.
The relevant facts and procedural history are as follows. Appellant
filed suit against Appellee, seeking to collect charges allegedly owed to
Appellant related to the towing and storage of a car owned by Appellee.
Trial Ct. Op. (TCO), 1/23/2016, at 2. In January 2011, the magisterial
district court entered a judgment of zero dollars in Appellant’s favor.
Appellant timely filed an appeal to the Court of Common Pleas in
Montgomery County.
In February 2011, Appellant filed a complaint claiming that Appellant
owed $5,547.50 for charges incurred while towing and storing Appellee’s
car, plus costs and attorney’s fees. See Pl. Compl., 2/28/2011, at ¶¶ 4-5; J-S50032-17
Exhibit “A”, Invoice, 1/1/2010.
In March 2011, Appellee filed an answer, new matter, and
counterclaim (collectively “Answer”) denying the allegations and liability for
charges, stating that it was never notified of the towing because the notice
was sent to the wrong address. See Def. Ans., 3/28/2011, at ¶ 4. Appellee
averred that as lessor of the vehicle, it is not responsible for towing fees, for
which the lessee would be solely responsible. See id. at ¶¶ 6-9. In a
counterclaim, Appellee alleged that Appellant converted the vehicle for its
own use, applied for an abandoned vehicle title, and attempted to sell the
vehicle for salvage without notifying Appellee of its abandoned status. See
id. at ¶¶ 17-20. According to Appellee, Appellant’s conduct was extreme
and outrageous, and the lawsuit to collect these charges was “arbitrary,
vexatious or filed in bad faith[.]” Id. at ¶ 19. Thereafter, Appellant filed an
answer effectively denying all of Appellee’s averments. See Pl. Reply to
New Matter and Answer to Counterclaim, at ¶¶ 6-23.
On August 13, 2013, Appellee sent notice of proposed termination of
the case pursuant to Pa.R.C.P. 230.2. On August 19, 2013, Appellant filed a
statement of notice of intention to proceed in the matter.
More than two years passed without any docket activity. On April 5,
2016, the prothonotary docketed a notice of proposed termination of the
case pursuant to local rule 1901. On April 12, 2016, Appellant filed a second
statement of intent to proceed.
On June 22, 2016, the trial court scheduled a case
-2- J-S50032-17
management/settlement conference for August 4, 2016. See TCO at 4.
Notice of the conference was docketed and sent to the parties electronically
pursuant to local rules. Under the terms of the case management order,
“[f]ailure to appear or otherwise comply with the provisions of this Order
shall result in the imposition of sanctions, which may include the entry of a
judgment of non-pros or an order of preclusion.” Order, 6/22/2016.
On August 4, 2016, Appellant failed to appear as required by the case
management order. Thereafter, on August 10, 2016, the court entered a
rule to show cause as to why the case should not be dismissed. See Order,
8/10/2016. On August 30, 2016, Appellant untimely filed a pre-trial
statement asserting in part that counsel had not received notice in this case.
See Pre-trial Statement, 8/30/2016. In September 2016, a hearing was
held, at which the trial court found unsatisfactory Appellant’s explanation for
failing to appear at the conference and orally dismissed the case. Notes of
Testimony (N.T.), 9/2/2016, at 13; see also Order, 9/7/2016.
On October 7, 2016, Appellant simultaneously filed a motion for
reconsideration and timely notice of appeal.1 Thereafter, Appellant filed a
court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a
responsive opinion. On appeal, Appellant raises the following issue:
____________________________________________
1 See Pa.R.A.P. 108(a)(1) (day of entry of an order shall be the day the clerk or court mails or delivers copies of the order to the parties).
-3- J-S50032-17
1. Did [Appellant] present enough evidence to rebut the presumption that [Appellant] received notice when the court has two systems to send notice but both parties did not receive notice?
Appellant's Br. at 3.
Appellant contends that the trial court did not send proper notice of
the case management conference. See Appellant's Br. at 5. The docket
indicates that neither party filed a pre-trial statement in compliance with the
case management order. According to Appellant, this demonstrates that
neither party received the order. Thus, Appellant argues that the court
erred when it found that notice was properly sent.
Preliminarily, we note that Appellant risks waiver of his one-page
argument due to lack of development. See Pa.R.A.P. 302, 2101. Appellant
fails to explain the relevance of cited caselaw and does not apply the
caselaw to the facts. See Appellant's Br. at 5. Nevertheless, we note that
Appellant relies on cases that applied the mailbox rule. See Berkowitz v.
Mayflower, 317 A.2d 584, 585 (Pa. 1974); Breza v. Don Farr Moving &
Storage Co., 828 A.2d 1131, 1135 (Pa. Super. 2003). Under the mailbox
rule, proof of mailing “creates a rebuttable presumption [that it] was in fact
received.” Berkowitz, 317 A.2d at 585. “[T]he presumption under the
mailbox rule is not nullified solely by testimony denying receipt of the item
mailed.” Breza, 828 A.2d at 1135. In both of these cases, competent
evidence of proof of mailing raised the presumption that the item was
received and the denial of receipt was insufficient to overcome the
-4- J-S50032-17
presumption. See Berkowitz, 317 A.2d at 385; Breza, 828 A.2d at 1135.
Essentially, Appellant challenges the sufficiency of the evidence to
support the trial court’s factual finding that notice was properly sent via
email notification. As Appellant raises an issue of fact, our scope of review is
limited to determining whether the trial court’s factual findings are
supported by competent evidence, and they will not be disturbed absent an
error of law or an abuse of discretion. Breza, 828 A.2d at 1134 (citing
Roman Mosaic and Tile Co. v. Thomas P. Carney, Inc., 729 A.2d 73,
76) (Pa. Super. 1999). Moreover, it is not the role of the appellate court to
determine the credibility of the witnesses and weigh their testimony, but
rather credibility determinations are within the province of the trial judge.
Roman Mosaic, 729 A.2d at 76 (citing Allegheny County v. Monzo, 500
A.2d 1096 (Pa. 1985)). Where there is sufficient evidence in the record to
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J-S50032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JANEWAY TOWING : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CREDIT CONNECTION AUTO SALES : No. 3175 EDA 2016
Appeal from the Order September 7, 2016 In the Court of Common Pleas of Montgomery County Civil Division at No(s): No. 11-02715
BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 14, 2017
Appellant, Janeway Towing, appeals from the September 7, 2016
order terminating Appellant’s case against Appellee, Credit Connection Auto
Sales, due to inactivity. We affirm.
The relevant facts and procedural history are as follows. Appellant
filed suit against Appellee, seeking to collect charges allegedly owed to
Appellant related to the towing and storage of a car owned by Appellee.
Trial Ct. Op. (TCO), 1/23/2016, at 2. In January 2011, the magisterial
district court entered a judgment of zero dollars in Appellant’s favor.
Appellant timely filed an appeal to the Court of Common Pleas in
Montgomery County.
In February 2011, Appellant filed a complaint claiming that Appellant
owed $5,547.50 for charges incurred while towing and storing Appellee’s
car, plus costs and attorney’s fees. See Pl. Compl., 2/28/2011, at ¶¶ 4-5; J-S50032-17
Exhibit “A”, Invoice, 1/1/2010.
In March 2011, Appellee filed an answer, new matter, and
counterclaim (collectively “Answer”) denying the allegations and liability for
charges, stating that it was never notified of the towing because the notice
was sent to the wrong address. See Def. Ans., 3/28/2011, at ¶ 4. Appellee
averred that as lessor of the vehicle, it is not responsible for towing fees, for
which the lessee would be solely responsible. See id. at ¶¶ 6-9. In a
counterclaim, Appellee alleged that Appellant converted the vehicle for its
own use, applied for an abandoned vehicle title, and attempted to sell the
vehicle for salvage without notifying Appellee of its abandoned status. See
id. at ¶¶ 17-20. According to Appellee, Appellant’s conduct was extreme
and outrageous, and the lawsuit to collect these charges was “arbitrary,
vexatious or filed in bad faith[.]” Id. at ¶ 19. Thereafter, Appellant filed an
answer effectively denying all of Appellee’s averments. See Pl. Reply to
New Matter and Answer to Counterclaim, at ¶¶ 6-23.
On August 13, 2013, Appellee sent notice of proposed termination of
the case pursuant to Pa.R.C.P. 230.2. On August 19, 2013, Appellant filed a
statement of notice of intention to proceed in the matter.
More than two years passed without any docket activity. On April 5,
2016, the prothonotary docketed a notice of proposed termination of the
case pursuant to local rule 1901. On April 12, 2016, Appellant filed a second
statement of intent to proceed.
On June 22, 2016, the trial court scheduled a case
-2- J-S50032-17
management/settlement conference for August 4, 2016. See TCO at 4.
Notice of the conference was docketed and sent to the parties electronically
pursuant to local rules. Under the terms of the case management order,
“[f]ailure to appear or otherwise comply with the provisions of this Order
shall result in the imposition of sanctions, which may include the entry of a
judgment of non-pros or an order of preclusion.” Order, 6/22/2016.
On August 4, 2016, Appellant failed to appear as required by the case
management order. Thereafter, on August 10, 2016, the court entered a
rule to show cause as to why the case should not be dismissed. See Order,
8/10/2016. On August 30, 2016, Appellant untimely filed a pre-trial
statement asserting in part that counsel had not received notice in this case.
See Pre-trial Statement, 8/30/2016. In September 2016, a hearing was
held, at which the trial court found unsatisfactory Appellant’s explanation for
failing to appear at the conference and orally dismissed the case. Notes of
Testimony (N.T.), 9/2/2016, at 13; see also Order, 9/7/2016.
On October 7, 2016, Appellant simultaneously filed a motion for
reconsideration and timely notice of appeal.1 Thereafter, Appellant filed a
court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a
responsive opinion. On appeal, Appellant raises the following issue:
____________________________________________
1 See Pa.R.A.P. 108(a)(1) (day of entry of an order shall be the day the clerk or court mails or delivers copies of the order to the parties).
-3- J-S50032-17
1. Did [Appellant] present enough evidence to rebut the presumption that [Appellant] received notice when the court has two systems to send notice but both parties did not receive notice?
Appellant's Br. at 3.
Appellant contends that the trial court did not send proper notice of
the case management conference. See Appellant's Br. at 5. The docket
indicates that neither party filed a pre-trial statement in compliance with the
case management order. According to Appellant, this demonstrates that
neither party received the order. Thus, Appellant argues that the court
erred when it found that notice was properly sent.
Preliminarily, we note that Appellant risks waiver of his one-page
argument due to lack of development. See Pa.R.A.P. 302, 2101. Appellant
fails to explain the relevance of cited caselaw and does not apply the
caselaw to the facts. See Appellant's Br. at 5. Nevertheless, we note that
Appellant relies on cases that applied the mailbox rule. See Berkowitz v.
Mayflower, 317 A.2d 584, 585 (Pa. 1974); Breza v. Don Farr Moving &
Storage Co., 828 A.2d 1131, 1135 (Pa. Super. 2003). Under the mailbox
rule, proof of mailing “creates a rebuttable presumption [that it] was in fact
received.” Berkowitz, 317 A.2d at 585. “[T]he presumption under the
mailbox rule is not nullified solely by testimony denying receipt of the item
mailed.” Breza, 828 A.2d at 1135. In both of these cases, competent
evidence of proof of mailing raised the presumption that the item was
received and the denial of receipt was insufficient to overcome the
-4- J-S50032-17
presumption. See Berkowitz, 317 A.2d at 385; Breza, 828 A.2d at 1135.
Essentially, Appellant challenges the sufficiency of the evidence to
support the trial court’s factual finding that notice was properly sent via
email notification. As Appellant raises an issue of fact, our scope of review is
limited to determining whether the trial court’s factual findings are
supported by competent evidence, and they will not be disturbed absent an
error of law or an abuse of discretion. Breza, 828 A.2d at 1134 (citing
Roman Mosaic and Tile Co. v. Thomas P. Carney, Inc., 729 A.2d 73,
76) (Pa. Super. 1999). Moreover, it is not the role of the appellate court to
determine the credibility of the witnesses and weigh their testimony, but
rather credibility determinations are within the province of the trial judge.
Roman Mosaic, 729 A.2d at 76 (citing Allegheny County v. Monzo, 500
A.2d 1096 (Pa. 1985)). Where there is sufficient evidence in the record to
support the trial court’s factual conclusions, “we are precluded from
overturning that finding and must affirm, thereby paying the proper
deference to the factfinder who heard the witnesses testify and was in the
sole position to observe the demeanor of the witnesses and assess their
credibility.” Id. (quoting DOT v. O’Connell, 555 A.3d 873, 875 (Pa.
1989)).
At the hearing on the rule to show cause, the trial court confirmed that
notice of the case management conference scheduled for August 4, 2016,
was docketed and sent electronically on June 22, 2016, to the email address
-5- J-S50032-17
of Appellant’s counsel, lawobrien@aol.com. See TCO at 5. Further,
Appellant’s counsel acknowledged that he is an e-filer and assented to
receipt of notice in this manner. See id. The trial court found Appellant’s
denial of receipt not credible, and found that Appellant’s confusion was
based on his misunderstanding of e-filing. See id. (citing N.T. at 9). The
court concluded that the electronic notice was received based on evidence
that it was sent; however, Appellant’s counsel failed to click on the link in
the email in order to access the case management order until after the court
issued the rule to show cause. See TCO at 6. The trial court’s findings are
supported by the record.
Appellant complains of “confusion when the Court uses both the US
mail and Email.” Appellant's Br. at 5. However, at the rule to show cause
hearing, Appellant admitted he was an e-filer, and he failed to recognize that
the local rules authorize service electronically in this manner. Here, notice
was sent electronically in a manner that conformed with local and state
rules. See Mont. Co. R.J.L. 1901(b) (governing termination of inactive
cases); id. at 1901(c) (authorizing service of notice by mail or electronic
transmission pursuant to Pa.R.C.P. 205.4(g) (authorizing service of all legal
process other than original process by electronic transmission)). Under
Pennsylvania Rule of Civil Procedure 205.4(g), service by electronic
transmission is acceptable procedure; service is completed when the court
sends a filing to the recipient’s email address or “to an electronic filing
-6- J-S50032-17
system website and an e-mail message is sent to the recipient by the
electronic filing system that the legal paper has been filed and is available
for review on the system's website.” Pa.R.C.P. 205.4(g)(2)(i)-(ii).
Appellant failed to rebut the presumption raised by the evidence
presented at the rule to show cause hearing that notice was properly sent in
accordance with local rules. We defer to the trial court’s factual findings and
credibility determinations as they are supported by the record. See
O’Connell, 555 A.3d at 875. We discern no abuse of the trial court’s
discretion in dismissing the case.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/14/2017
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