PEV LLC v. Baldwin

• Court: Superior Court of Pennsylvania
• Decided: March 29, 2023
• Docket: 1250 MDA 2021
• Status: Unpublished

Opinion

J-A27023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PEV LLC : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERICA BALDWIN, WALLACE : BALDWIN AND JOAN ALEXIS : : No. 1250 MDA 2021 Appellants :

Appeal from the Order Entered August 25, 2021 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2021-01655

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 29, 2023

Erica Baldwin, Wallace Baldwin, and Joan Alexis (“Tenants”) appeal pro

se from the order dismissing their appeal from the magisterial district court.

We reverse.

Tenants rented an apartment from PEV, LLC (“PEV”). PEV initiated a

landlord/tenant action in the magisterial district court alleging Tenants

violated the lease. A magisterial district judge held a hearing, entered

judgment in favor of PEV, and granted PEV possession of the property.

Tenants filed a notice of appeal to the court of common pleas. The notice

of appeal was a form that consisted of a one-page document with two sections.

The top section, “Notice of Appeal,” was completed with the relevant

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A27023-22

information. The bottom section, “Praecipe to Enter Rule to File Complaint and

Rule to File,” contained the Common Pleas docket number, date, and signature

of the prothonotary.1 The two spaces for appellee’s name and the space for

1 The bottom portion of the Notice of Appeal filed in this case reads as follows:

PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used only when appellant was DEFENDANT (see Pa.R.C.P.M.D.J. No. 1001(7)[)] in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee.[)]

PRAECIPE: To Prothonotary

Enter Rule upon ________________ appellee(s), to file a Name of Appellee(s) complaint in this appeal (Common Pleas No. 21 CV 1655) within twenty (20) days after service of rule or suffer entry of judgment of non pros. __________________________________ Signature of appellant or attorney or agent

RULE: To _________________, appellee(s) Name of Appellee(s)

(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service of by certified or registered mail.

(2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU.

(3) The date of service of this rule if service was by mail is the date of the mailing.

Date: _April 15, 2021 __Marie B. Kelly___________ Signature of Prothonotary . . .

Notice of Appeal from Magisterial District Judge, filed Apr. 15, 2021.

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appellants’ signature remained blank. Tenants served the Notice of Appeal on

PEV and filed proof of service.

PEV filed a praecipe to strike the appeal “as per Pa.R.C.P.M.D.J. 1006

for failure to Comply with rule 1004B Pa.R.C.P.M.D.J.” See Praecipe to Strike

Appeal from District Justice, filed May 12, 2021. Rule 1004(B) provides: “If

the appellant was the defendant in the action before the magisterial district

judge, he shall file with his notice of appeal a praecipe requesting the

prothonotary to enter a rule as of course upon the appellee to file a complaint

within twenty (20) days after service of the rule or suffer entry of a judgment

of non pros.” Pa.R.C.P.M.D.J. 1004(B). The clerk of judicial records struck the

appeal.

Tenants petitioned to reinstate the appeal, and the trial court held a

hearing. See N.T., Aug. 23, 2021, at 2. Tenants claimed that although the

spot identifying the party on whom a rule to file a complaint should be served

was blank on the filed version of the document, they had filled in that portion

of the document prior to serving PEV. See, e.g., id. at 13-14, 30.2 The trial

court ordered the appeal dismissed, finding Tenants failed to comply with

Pa.R.C.P.M.D.J. 1004B. Tenants filed a timely notice of appeal to this Court.

Tenants’ brief to this Court does not include a statement of questions

involved. We could find waiver due to this failure. Pa.R.A.P. 2116(a) (“No

2 Tenants also claimed after they served PEV they filed a second, completed document. See, e.g., N.T., Aug. 23, 2021, at 11. The record does not contain a complete document.

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question will be considered unless it is stated in the statement of questions

involved or is fairly suggested thereby”); see Commonwealth v. Hodge,

144 A.3d 170, 172 n.4 (Pa.Super. 2016) (finding claim not raised in statement

of questions involved waived). However, because it seems clear that the only

issue Tenants raise is whether the court erred in striking the appeal, and the

trial court addressed this issue, we find our review is not hampered and will

address the issue. Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.

2005) (addressing discerned claim even though brief failed to include

statement of questions involved, statement of scope and standard of review,

statement of the case, or a summary of the argument). To the extent Tenants

may contend they intended to raise any other issues that we have not

perceived in their argument, such issues are waived.

We review an order striking an appeal from a judgment entered by a

magisterial district judge for an abuse of discretion or error of law. See

Flagler v. Templin, 2020 WL 1515908, at *3 (Pa.Super. Mar. 30, 2020)

(unpublished mem.).

Rule of Civil Procedure Governing Proceedings Before Magisterial District

Judges 1006 governs the striking of appeals from magisterial district court to

the Court of Common Pleas. It provides that “[u]pon failure of the appellant

to comply with Rule 1004A or Rule 1005B, the prothonotary shall, upon

praecipe of the appellee, mark the appeal stricken from the record. The court

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of common pleas may reinstate the appeal upon good cause shown.”

Pa.R.C.P.M.D.J. 1006 (emphasis added).3

Here, PEV filed a praecipe to strike the appeal for Tenants’ alleged failure

to comply with Rule 1004(B), and the court dismissed the case for this alleged

failure. Rule 1006 does not allow a court to strike an appeal due to failure to

comply with Rule 1004B. Rather it allows a court to strike an appeal only for

failure to comply with Rule 1004A or 1005B.4 We therefore conclude the court

erred in striking the appeal.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/29/2023

3 Rule 1004A provides, “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. 1004A.

Rule 1005B provides, “The appellant shall file with the prothonotary proof of service of copies of the notice of appeal, and proof of service of a rule upon the appellee to file a complaint if required to request such a rule by Rule 1004B, within 10 days after filing the notice of appeal.” Pa.R.C.P.M.D.J. 1005B.

4 On appeal, PEV also relies on Rule 1005A to claim the court did not err in striking the appeal. However, Rule 1006 does not allow a court to strike an appeal for failure to comply with Rule 1005A.

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