Elmakias, D. v. Solomon, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID ELMAKIAS AND ANAT : IN THE SUPERIOR COURT OF
ELMAKIAS : PENNSYLVANIA
:
:
v. :
:
:
ANDREA T. SOLOMON AND MICAH A. :
SOLOMON : No. 3849 EDA 2017
:
Appellants :
Appeal from the Order Dated November 24, 2017
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 17-27457
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 17, 2018
Appellants Andrea T. Solomon and Micah A. Solomon appeal pro se from
the Order entered in the Court of Common Pleas of Montgomery County on
November 24, 2017, denying their petition for leave to appeal nunc pro tunc
from a magisterial district court’s judgment and their emergency stay of
eviction. In light of Appellants’ failure to ensure this Court received a complete
record necessary for meaningful appellate review and of the substantial
defects in their brief, we dismiss this appeal.
The trial court set forth the relevant facts and procedural history herein
as follows:
Appellant, Andrea Solomon, filed the petition to appeal nunc
pro tunc and motion for stay of eviction in this [c]ourt on
November 22, 2017, seeking to overturn the effect of the lower
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* Former Justice specially assigned to the Superior Court.
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court's judgment entered September 29, 2017, which had found
against her in the amount of $12,000 in back rent plus costs
(establishing the amount of monthly rent as $2,428) and awarding
possession of leased premises (1505 Seneca Run, Ambler, PA
19002) to the landlords (Appellees). (Not. J./Tr. Residential Lease
1, Sept. 29, 2017.) Andrea Solomon was the only party against
whom judgment was rendered in the court below, the only
petitioning party listed in the caption of the motion for stay and
accompanying petition for leave to proceed in forma pauperis, and
the only party listed as Defendant on the docket of this lower
[c]ourt. However, the petition to appeal nunc pro tunc also names
a Micah Solomon as "indispensible [sic] party" (Pet. Leave Appeal
Nunc Pro Tunc, Nov. 22, 2017) and the Superior Court docket also
lists him as an Appellant.
The hand-printed petition states as reasons for requesting
an appeal nunc pro tunc, "Appellant was involuntarily committed
on [October] 8, 2017, prior to the end of Appeals time. Appellant
was not released until on or about October 18, 2017. Appellant's
husband and minor child were left in the home, when constable
came to post enforcement of the judgement." (Pet. Leave Appeal
Nunc Pro Tunc para. 3.) The statement of reasons also contains
barely discernible allegations about an "involuntary petition for
Bankruptcy, filed [October] 11, 2017" (Pet. Leave Appeal Nunc
Pro Tunc para. 3), which would have been after expiration of the
ten-day period allowed by Pa.R.C.P.M.D.J. 1002(B) for appealing
the magisterial district court's judgment for possession of
September 29, 2017.
Attached to Appellant's motion for stay of eviction was a
copy of what appeared to be an order of the United States
Bankruptcy Court for the Eastern District of Pennsylvania in the
matter of Andrea T. Solomon and Micah A. Solomon, Debtors,
regarding the motion of David and Anat Elmakias
(landlords/Appellees) for relief from the automatic stay in
bankruptcy (see 11 U.S.C. § 362) entered November 14, 2017,
after hearing, stating:
1. The [a]utomatic [s]tay, as it applies to
[M]ovants David and Anat Elmakias, expired on
November 11, 2017.
2. The [a]utomatic [s]tay as it applies to
[M]ovants David and Anat Elmakias[] is reinstated
effective November 14, 2017 and will remain in effect
until November 27, 2017.
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3. The [a]utomatic [s]tay is lifted for the limited
purpose of allowing Debtor Andrea T. Solomon to
[p]etition the Montgomery County Pennsylvania Court of
Common Pleas regarding the Eviction Judgment in MJ-
38110-LT-54- 2017.
4. Debtors are to submit to the Clerk of the
Bankruptcy Court $2,300.00 no later than 5:00 PM on
November 27, 2017 in certified funds. If the funds are
not submitted, the [a]utomatic [s]tay is terminated and
Movants may proceed with an eviction for the property
at 1505 Seneca Run, Ambler, PA 19002, on November
28, 2017, or any time thereafter.
5. If Debtors pay the funds into court the
automatic stay shall remain in effect and a hearing shall
be scheduled for November 30, 2017 at 1:30 PM in
Courtroom 2, United States Bankruptcy Court, Eastern
District of Pennsylvania, 900 Market Street,
Philadelphia, PA 19007 to determine if there are grounds
for the automatic stay to continue.
(Emergency Mot. Stay Eviction app. 1.) No other information
about the status or outcome of the proceedings in bankruptcy
appears of record.
This [c]ourt scheduled and held a hearing on the petition for
leave to appeal nunc pro tunc and motion for stay of eviction [on]
November 24, 2017, two days after their filing (with the
intervening day being the Thanksgiving holiday). After hearing,
the undersigned denied the petition and motion.
That same day, Andrea and Micah filed a notice of appeal of
the [c]ourt's order to the Superior Court. The certificate of service
of the notice of appeal, which complied with neither Pa.R.A.P.
121(c), Pa.R.A.P. 122(b), nor Pa.R.A.P. 906(a), indicated service
of the notice was being made upon the Elmakiases and their
counsel by email delivery. Contrary to Pa.R.A.P. 906(a)(2)-(4),
the certificate failed to show service upon the undersigned Judge,
the official Court Reporter, or the Court Administrator or his
designee under the Pennsylvania Rules of Judicial Administration,
Pa.R.J.A. 4007(B)(3). The notice of appeal also did not, in
violation of Pa.R.A.P. 904(c), Pa.R.A.P. 906(a), and Pa.R.A.P.
1911, include a request for a transcript of the hearing
proceedings, and as of the date of this writing no such transcript
has been ordered or produced.
On December 21, 2017, nearly a month after the filing of
the appeal, Micah Solomon filed another certificate of service of
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the notice of appeal, still noncompliant with Pa.R.A.P. 121(c),
Pa.R.A.P. 122(b), and Pa.R.A.P. 906(a) (requiring that "proof of
service compliant with this rule" be served concurrently with the
notice of appeal), indicating the notice had been served upon the
undersigned on November 24, 2017, "personally." The
undersigned does not recall being served that day, or any day,
with the notice of appeal, and has no such notice in his possession
or chambers. Cf. Pa.R.A.P. 122 note ("Under 18 Pa.C.S. § 4904
(unsworn falsification to authorities) a knowingly false proof of
service constitutes a misdemeanor of the second degree.").
On or after March 8, 2018 (the date the Superior Court's
notice dated March 6, 2018, was postmarked), the undersigned
received notice from the Superior Court under Pa.R.A.P. 1935(a)
that the record of proceedings in this [c]ourt was overdue to be
transmitted to that Court pursuant to Pa.R.A.P. 1931 (providing
generally that the record must be transmitted to the appellate
court within sixty days after the filing of the notice of appeal). The
undersigned investigated the circumstances and issues
surrounding the notice of appeal and the underlying case, and now
offers this opinion under Pa.R.A.P. 1925(a) ("Except as otherwise
prescribed by this rule, upon receipt of the notice of appeal, the
judge who entered the order giving rise to the notice of appeal, if
the reasons for the order do not already appear of record, shall
forthwith file of record at least a brief opinion of the reasons for
the order, or for the rulings or other errors complained of, or shall
specify in writing the place in the record where such reasons may
be found.”).
Trial Court Opinion, filed March 29, 2018, at 1-4.
This Court reviews a trial court’s denial of an appeal nunc pro tunc under
an abuse of discretion standard. Raheem v. University of the Arts, 872
A.2d 1232, 1234 (Pa.Super. 2005). An abuse of discretion is not merely an
error of judgment but is found where the law is “overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill will as shown by the evidence or the record.” Freeman
v. Bonner, 761 A.2d 1193, 1194–95 (Pa.Super. 2000) (quoting Union
Electric Corporation v. Board of Property Assessment, Appeals, &
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Review of Allegheny County, 746 A.2d 581, 583 (Pa. 2000) ). An appeal
nunc pro tunc is intended as a remedy to vindicate the right to appeal where
that right has been lost due to extraordinary circumstances involving fraud or
its equivalent, duress, or coercion. Union Electric Corporation, 560 Pa. at
486, 746 A.2d at 584.
In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court
indicates that due to Appellants’ failure to create and preserve a record, which
necessarily should have included the transcription of the notes of testimony
from the November 24, 2017, hearing on their petition, it was unable to
conduct a proper analysis of the case to determine whether “fraud, breakdown
in court operations, or ‘non-negligent happenstance’ may have contributed to
the late filing of the appeal from the magisterial district court.” Trial Court
Opinion, filed 3/29/18, at 6. Pa.R.A.P. 1911 requires an appellant to request
a transcript of any proceeding essential to the consideration of his or her
appeal. Pa.R.A.P. 1911(a). However, our review of the certified record does
not reveal a request for the November 24, 2017, hearing transcript, and no
notes of testimony from that date or any other are contained therein.
“For purposes of appellate review, what is not of record does not exist.”
Woskob v. Woskob, 843 A.2d 1247, 1257 (Pa.Super. 2004), quoting,
Rosselli v. Rosselli, 750 A.2d 355, 359 (Pa.Super. 2000), appeal denied,
764 A.2d 50 (Pa. 2000). “It remains the appellant's responsibility to ensure
that a complete record is produced for appeal.” Kessler v. Broder, 851 A.2d
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944, 950 (Pa.Super. 2004) (citation omitted), appeal denied, 868 A.2d 1201
(Pa. 2005). “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 lack of expertise
and legal training will be his undoing.” In re Ullman, 995 A.2d 1207, 1211-
12 (Pa.Super. 2010) (internal citations omitted), appeal denied, 20 A.3d 489
(Pa. 2011).
When failure to ensure a complete record hampers meaningful review
of an appellant's issues, dismissal of the appeal is appropriate. See Pa.R.A.P.
1911(d); see also In re R.N.F., 52 A.3d 361, 363 (Pa.Super. 2012)
(dismissing appeal from decree terminating parental rights where absence of
a crucial transcript precluded meaningful appellate review); Gorniak v.
Gorniak, 504 A.2d 1262, 1263–64 (Pa.Super. 1986) (dismissing an appeal
because the appellant failed to request transcription of divorce master's
hearing, precluding meaningful review). We agree with the trial court that
under these circumstances, adequate appellate review is not possible, and the
instant appeal should be dismissed in light of the incomplete certified record.
In addition, we note Appellants’ brief is deficient in numerous respects
and that deficiency serves and an alternative ground for dismissal. Appellate
briefs and reproduced records must materially conform to the requirements
of the Pennsylvania Rules of Appellate Procedure. Commonwealth v.
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Adams, 882 A.2d 496, 497 (Pa.Super. 2005) (citing Pa.R.A.P. 2101). “This
Court may quash or dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate Procedure.” Id.
at 497–98 (citation omitted). If the defects in an appellant's brief are
substantial, the appeal may be quashed or dismissed. Pa.R.A.P. 2101. See
also Pa.R.A.P. 2111–2119 (discussing required content of appellate briefs and
addressing specific requirements of each subsection of brief on appeal).1
Appellants filed what they titled “Appellants’ Opening Brief”; however,
they failed to articulate therein any issues for this Court’s consideration. In
fact, Appellants’ brief is woefully inadequate; it lacks, inter alia, a statement
of jurisdiction, the text of the order from which Appellants purport to appeal,
a statement of the scope and standard of review, a statement of the questions
involved, a summary of the argument, the trial court's 1925(a) Opinion, or an
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1 When considering whether the appropriate dismissal of an action should be
quashal or dismissal, this Court has stated the following:
Quashal is usually appropriate where the order below was
unappealable, see Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712
(1981) (court lacks jurisdiction-appeal interlocutory), the appeal
was untimely, see Stotsenburg v. Frost, 465 Pa. 187, 348 A.2d
418 (1975), or the Court otherwise lacked jurisdiction, see
Pa.R.C.P. 1972. . . . [A]s in the instant case where the problem is
numerous defects in Appellant's brief, the appropriate disposition
is dismissal. See First Lehigh Bank v. Haviland Grille, Inc.,
704 A.2d 135, 138 n. 2 (Pa.Super.1997) (Failure to conform with
the requirements of rules of court is grounds for dismissal).
Bronson v. Kerestes, 40 A.3d 1253, 1255 (Pa.Super. 2012).
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averment that the trial court did not order Appellant to file a Pa.R.A.P. 1925(b)
Statement. See Pa.R.A.P. 2111(a)(1), (2), (3), (4), (6), (10), (11),
respectively.
Most significantly, there is no clearly delineated argument section in
Appellants’ brief, see Pa.R.A.P. 2111(a)(8), aside from what is titled
“Erroneously Filed Matter” which is completely devoid of, among other things,
any discussion and citation to supporting authority as required by Pa.R.A.P.
2119(b). See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.
2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (stating that it is an
appellant's duty when briefing issues to present arguments that are
sufficiently developed with pertinent discussion, references to the record, and
citations to legal authorities); Commonwealth v. B.D.G., 959 A.2d 362,
371–72 (Pa.Super. 2008) (“When an appellant fails to develop his issue in an
argument and fails to cite any legal authority, the issue is waived.”).
Appellants’ failure to comply in substantial respects with the Rules of
Appellate Procedure prevents this Court from conducting meaningful appellate
review. Thus, we conclude they have waived any claims on appeal.
Accordingly, we dismiss this appeal.
Appeal dismissed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/18
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