Crown Asset Mngmt v. Sutton, M. ( 2021 )

J-S09017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CROWN ASSET MANAGEMENT, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL SUTTON :
:
Appellant : No. 1353 EDA 2020
Appeal from the Order Entered February 13, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 191001297
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY McCAFFERY, J.: FILED JUNE 02, 2021
Michael Sutton (Appellant) appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his motion to reinstate
an appeal from the Philadelphia Municipal Court. The trial court based its
decision on Appellant’s failure to serve the court’s standing case management
order on Crown Asset Management, LLC (Crown Asset). Appellant addresses
this point (service of the standing case management order) for the first time
on appeal. Because Appellant has not preserved any meritorious claim for our
review, we affirm.
Crown Asset filed the instant collections action in the Philadelphia
Municipal Court against Appellant, relating to an outstanding credit card
balance. Trial Ct. Op., 10/9/20, at 1. On September 20, 2019, the Municipal
Court entered judgment in favor of Crown Asset in the amount of $1,886.21.
J-S09017-21
Pertinently, Crown Asset listed its address in care of its counsel’s out-of-state
address.1
On October 15, 2019, Appellant filed a counseled appeal to the trial
court. On the same day, the trial court issued a “standing case management
order,” which stated in pertinent part:
**IMPORTANT** PLEASE READ THIS ORDER CAREFULLY.
It contains important information about your case. Failure
to comply with any instructions provided in this Order may
cause you to lose your case.
* * *
4. SERVICE: As the party taking this appeal, you must serve a
copy of your notice of appeal and this Standing Case
Management Order on the opposing party. SERVICE must be
made upon the opposing party pursuant to Philadelphia Rule
of Civil Procedure 1001 (d). You are required to file proof of
service promptly upon completion of service utilizing the Civil
Electronic Filing System.
The Court will not hear your case and may dismiss your
appeal if proper service is not completed and if proof of
service is not filed.
Standing Case Management Order, 10/15/19, at 1 (capitalization and
emphasis in original). We emphasize this provision directed Appellant to, inter
alia, serve a copy of the standing case management order on Crown Asset.
Later that same day, October 15, 2019, Appellant filed a praecipe with the
trial court to enter a rule on Crown Asset to file a complaint within 20 days.
____________________________________________
1 Crown Asset’s own address is likewise out of state.Crown Asset’s Response
in Opposition to Appellant’s Motion to Reinstate Appeal, 1/27/20, at 1.
-2-
J-S09017-21
Two months later, on December 23, 2019, Crown Asset filed a praecipe
to strike Appellant’s appeal, claiming Appellant violated the Philadelphia Rules
of Civil Procedure by: (1) serving his notice of appeal on Crown Asset on
December 5th, more than 50 days after the notice of appeal was filed; (2) not
serving the standing case management order at all; and (3) failing to
file proof of service of the notice of appeal. Appellant’s appeal was accordingly
stricken.
On January 3, 2020, Appellant filed a counseled motion to reinstate his
appeal, focusing on his alleged compliance with service on an out-of-state
party. Appellant averred: (1) he properly served the notice of appeal and
rule to file a complaint on Crown Asset in accordance with the Rules of Civil
Procedure for service outside the Commonwealth; (2) Crown Asset admitted
it received service of the notice of appeal and rule to file complaint; (3)
however, Crown Asset “did not sign the return receipt and made no indication
as to when it was delivered;” (4) thus, Appellant could not file the affidavit,
which requires the signed return receipt; and (5) Appellant’s “[c]ounsel was
attempting re-service of the notice of appeal and rule in order to comply with
the requirements for the affidavit of service within the time frame provided by
[Pennsylvania Rule of Civil Procedure] 404.”2 Appellant’s Motion to Reinstate
____________________________________________
2 Rule 404(2) provides: “Original process shall be served outside the
Commonwealth within ninety days of the issuance of the writ or the filing of
(Footnote Continued Next Page)
-3-
J-S09017-21
Appeal, 1/3/20, at ¶¶ 3-8. Appellant then concluded: (1) striking the appeal
was not authorized by Philadelphia Rule 1001, which merely provides an
appeal may be stricken on a failure to file a complaint, and here, Crown Asset
admitted it received service of the notice of appeal; and (2) Crown Asset’s
“refusal to sign and date the return receipt . . . constitutes good cause to
reinstate the appeal.” Appellant’s Motion to Reinstate Appeal, 1/3/20, at 2-3
(unpaginated). Appellant made no mention of Crown Asset’s argument that
he failed to serve a copy of the standing case management order, a point
which Crown Asset then emphasized in a response to Appellant’s motion to
reinstate.
On February 13, 2020, the trial court entered the underlying order,
denying Appellant’s motion to reinstate his appeal to the trial court. Appellant
filed a timely notice of appeal. Pursuant to the trial court’s Pa.R.A.P. 1925(b)
order, Appellant filed a court-ordered statement of errors complained of on
appeal, which raised six issues, none of which refer to the standing case
management order:
1. The Trial Court erred in denying [Appellant’s] motion to
reinstate appeal where service of the rule to file complaint was
made on [Crown Asset] in accordance with the rules of civil
procedure applicable to service of original process upon parties
outside of the Commonwealth of Pennsylvania.
____________________________________________
the complaint or the reissuance or the reinstatement thereof . . . by mail in
the manner provided by Rule 403.” Pa.R.C.P. 404(2).
-4-
J-S09017-21
2. To the extent that the Court determined that service of the rule
to file complaint had not been made, the Court erred in finding
that Rule 404 of the Rules of Civil Procedure, relating to service of
original process outside of the Commonwealth of Pennsylvania,
did not apply to service of the rule to file complaint upon parties
outside of the Commonwealth of Pennsylvania where Rule 400.1,
relating to Courts of the First Judicial District, speaks only to
service “within the county [of Philadelphia]” and “in any other
county [within the Commonwealth]” and is silent as to service on
parties outside of the Commonwealth of Pennsylvania.
3. Where Philadelphia Local Rule of Civil Procedure 1001 is silent
as to when service of the rule to file complaint must be made, the
Court erred in allowing the appeal to be stricken prior to the
ninety-day period for service of original process specified in Rule
404, which governs service of original process outside of the
Commonwealth of Pennsylvania.
4. The Court erred in finding that the Prothonotary had the
authority to strike [Appellant’s] appeal where [Crown Asset’s
praecipe] stated that the rule to file complaint had been served in
accordance with the rules of civil procedure governing service of
original process.
5. The Court erred in finding that the Prothonotary had the
authority to strike [Appellant’s] appeal for failing to file a proof of
service where it was admitted in [Crown Asset’s praecipe] to strike
appeal that the service of the rule to file complaint had been made
by [Appellant] in accordance with the Rules of Civil Procedure.
6. The Court erred by not finding good cause to reinstate the
appeal.
See Appellant’s Concise Statement of Errors Complained of on Appeal,
4/13/20, at 1-2.
The trial court issued an opinion. It did “not dispute that Appellant
served the Rule to File Complaint on” Crown Asset, but found “Appellant’s
service was deficient because [he] never served the Standing Case
-5-
J-S09017-21
Management Order . . . as required” by the standing case management order
itself. Trial Ct. Op. at 3. The court further stated:
Appellant filed his Motion to Reinstate Appeal on January 3,
2020, and the Motion was assigned to this Court on January 29,
2020. By this time, the [90] day deadline to serve [Crown Asset]
had lapsed and Appellant could not correct the deficiency in
service. Further, Appellant did not dispute or otherwise address
[Crown Asset’s] claim that [he] failed to serve the Standing Case
Management Order in his Motion to Reinstate or in his [Rule
1925(b) statement.] As service was deficient, and could not be
corrected, there was no good cause for this Court to reinstate
Appellant’s appeal.
Trial Ct. Op. at 3-4.
Appellant raises two issues in his statement of questions involved:
1. Whether the lower court erred in denying [Appellant’s] motion
to reinstate appeal where service of the rule to file complaint was
made on [Crown Asset] in accordance with the rules of civil
procedure applicable to service of original process upon parties
outside of the Commonwealth of Pennsylvania?
2. Whether the lower court erred in finding that the Prothonotary
had the authority to strike Appellant’s appeal for failing to file a
proof of service or failure to serve a case management order
where the time for service outside of the Commonwealth had not
lapsed and where it was admitted in [Crown Asset’s praecipe] to
strike appeal that the service of the rule to file complaint had been
made in accordance with the Rules of Civil Procedure?
Appellant’s Brief at 4.3
____________________________________________
3 Appellant’s argument, however, is not divided into corresponding sections,
and instead presents the following claims in one discussion. We remind
counsel: “The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part — in distinctive
type or in type distinctively displayed — the particular point treated therein,
(Footnote Continued Next Page)
-6-
J-S09017-21
For ease of review, we first set forth Philadelphia Rule 1001(h) (general
provisions applicable to municipal court appeals), upon which Appellant relies:
(h) Striking Appeal. . . . [U]pon the failure of the appellant
who was the defendant in the Municipal Court action to serve upon
the appellee (who was the plaintiff in the Municipal Court action)
of a rule to file a complaint . . . the Office of Judicial Records shall,
upon praecipe of the appellee, mark the appeal stricken from the
record. The Court of Common Pleas may reinstate the appeal
upon good cause shown.
See Phila.R.C.P. 1001(h).
Appellant argues Philadelphia Rule 1001(h) “is the only rule authorizing
the prothonotary to strike an appeal from the Philadelphia municipal court.”
Appellant’s Brief at 9. He contends that while this rule “authorizes the
Prothonotary to strike an appeal for failure to serve a rule to file complaint[,
it] is silent as to the effect of failing to serve a notice of appeal, a proof of
service or an order of the court.” Appellant’s Brief at 10. Appellant asserts
neither the Philadelphia Rule nor the standing case management order
“authorized the Prothonotary to strike the appeal in this [case], and certainly
not before the time for service under Rule 404 had elapsed.”4 Id. He then
contends “[t]he trial court acknowledged that the appeal had been stricken
____________________________________________
followed by such discussion and citation of authorities as are deemed
pertinent.” See Pa.R.A.P. 2119(a).
4 Appellant’s brief makes no further mention of “Rule 404,” and does not cite
the provisions of this rule. However, we glean from his filings before the trial
court that he may be referring to Pennsylvania Rule of Civil Procedure 404.
We again remind counsel that the argument shall include “such discussion and
citation of authorities as are deemed pertinent.” See Pa.R.A.P. 2119(a).
-7-
J-S09017-21
before the time for service had elapsed and only reasoned that because
[Appellant’s] motion to reinstate appeal was ‘assigned’ after the time had
elapsed, the court was somehow powerless to reinstate the appeal.” Id. at
10-11 (no citation provided). Finally, Appellant maintains, Rule 1001(h)
provides a court with authority to reinstate an appeal “upon good cause
shown.” Id. at 11. We determine no relief is due.
We emphasize the trial court found Appellant’s service was deficient on
one ground: his failure to serve the standing case management order on
Crown Asset, as required by the order itself. Standing Case Management
Order. Id. Appellant has been represented by counsel throughout the trial
court proceedings. Although Crown Asset’s filings clearly raised this point —
service of the standing case management order — Appellant did not address
it at any time in the trial court proceedings. Indeed, after the trial court issued
its opinion, clearly advising Appellant of its basis for denying his motion to
reinstate, Appellant’s lengthy Rule 1925(b) continued to ignore this issue.
See Appellant’s Concise Statement of Errors Complained of on Appeal,
4/13/20, at 1-2; Trial Ct. Op. at 4. Instead, Appellant addresses this issue for
the first time in his appellate brief.
Instead, Appellant briefly addresses the case management service order
for the first time in his appellate brief, as follows: “[Philadelphia Rule 1001(h)]
is silent as to the effect of failing to serve a notice of appeal, a proof of service,
or an order of court.” See Appellant’s Brief at 10 (emphasis added).
-8-
J-S09017-21
Because Appellant did not raise this issue before the trial court at any time,
we are constrained to conclude the issue is waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal.”), 1925(b)(4)(vii) (“Issues not included in the
Statement . . . are waived.”); Sabella v. Appalachian Dev. Corp., 103 A.3d
83, 98 (Pa. Super. 2014) (appellants waived issues for appeal where: (1) they
did not establish they preserved their objection before the trial court; and (2)
their “Rule 1925(b) statement was insufficient to apprise the trial court of the
specific arguments made before this Court”). See also In re F.C. III, 2 A.3d
1201, 1211–12 (Pa. 2010) (“Issue preservation is foundational to proper
appellate review. . . . By requiring that an issue be considered waived if
raised for the first time on appeal, our courts ensure that the trial court that
initially hears a dispute has had an opportunity to consider the issue.”); Keller
v. Mey, 67 A.3d 1, 7 (Pa. Super. 2013) (“This Court will not develop
arguments on the behalf of an appellant or comb the record for factual
underpinnings to support an appellant’s position.”); Devine v. Hutt, 863 A.2d
1160, 1169 (Pa. Super. 2004) (“The Superior Court, as an error-correcting
court, may not purport to reverse a trial court’s order where the only basis for
a finding of error is a claim that the responsible party never gave the trial
court an opportunity to consider.”).
-9-
J-S09017-21
Appellant’s remaining arguments do not merit relief — as to they go to
issues not relied upon by the trial court for denying his motion to reinstate —
and thus we affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2021
- 10 -