PEV LLC v. Baldwin ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
-2-
J-A27023-22
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.
-3-
J-A27023-22
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
-4-
J-A27023-22
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.
-5-
J-A27023-22
-6-