Mickavicz, F. v. Mickavicz, L.

J-A30027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRANCIS MICKAVICZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LOUIS MICKAVICZ : No. 320 MDA 2019
Appeal from the Order Entered February 4, 2019
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2841 CV 2016,
452 CV 2018
BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 03, 2019
Appellant Francis Mickavicz appeals from the order dismissing his
petition to strike amended statement of claim against Appellee Louis
Mickavicz. On appeal, Appellant challenges whether the trial court erred in
dismissing Appellant’s petition. For the following reasons, we quash the
appeal.
The parties are familiar with the facts underlying this appeal, so we do
not restate them here. In pertinent part, on May 5, 2016, Appellant filed a
petition to strike off an amended statement of claim1 to the disputed
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* Retired Senior Judge assigned to the Superior Court.
1In Reed Road Assocs. v. Campbell, 582 A.2d 1373 (Pa. Super. 1990), this
Court explained as follows:
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properties, in a case docketed at 2016-2841.2 On June 1, 2016, the trial court
dismissed the petition without prejudice and stated that “further proceedings”
must comply with the Pennsylvania Rules of Civil Procedure governing the
commencement of an action and an action to quiet title. Order, 6/1/16.3
On January 18, 2018, Appellant filed a complaint to quiet title of the
properties in dispute, which was docketed at 2018-452. Appellee filed
preliminary objections claiming Appellant failed to state a cause of action and
Appellant had previously filed a similar action, which was dismissed in 2016.
The trial court sustained the preliminary objections, ruling that Appellant failed
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A Statement of Claim is filed by a party who claims title to real
estate by adverse possession, and the Statement is recorded and
indexed as though it were a deed. Unless this Statement is
recorded as provided by statute, any claim against a purchaser
without actual notice, is invalid and the party thus claiming
adverse possession will not prevail. This right to file a Statement
of Claim, which protects a claimant’s interest in real property as
against a purchaser without notice during the pendency of what
may be lengthy proceedings, is a significant right, and is too
important to be denied review until the end of the proceedings.
Campbell, 582 A.2d at 1374-75 (citations omitted).
2The record at 2016-2841 was not transmitted to this Court. Rather, the
docket for that action was included as part of the reproduced record for the
underlying action, which has a docket number of 2018-452.
3 This order, which would have been part of the record at 2016-2841, was not
transmitted to this Court but was included in the reproduced record.
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to state a cause of action to quiet title and dismissing the complaint without
prejudice. Order, 8/16/18.4
Notwithstanding the dismissal of the action, Appellant filed a petition to
strike off Appellee’s amended statement of claim on October 1, 2018. The
trial court took no action. On December 5, 2018, Appellant filed another
identical petition. The trial court held an evidentiary hearing on December 6,
2018. At the beginning of the hearing, the parties agreed that the dockets for
2016-2841 and 2018-452 were consolidated. N.T. Hr’g, 12/6/18, at 3.5 The
trial court deferred ruling, and ultimately dismissed Appellant’s petition to
strike amended statement of claim on February 4, 2019. The trial court’s
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4 Specifically, the order stated that Appellant “failed to state a cause of action
for a quiet title action” and “all references to quiet title should be stricken from
the complaint without prejudice.” Order, 8/16/18, at 1 (emphasis in original
and some formatting omitted). Because Appellant’s sole claim was to quiet
title, the impact of the trial court’s phrasing was to dismiss the claim without
prejudice. See also Trial Ct. Op., 2/4/19, at 1 (construing August 16th order
as having “the effect of dismissing, at that time,” Appellant’s action to quiet
title). By implication, the trial court permitted Appellant to refile his complaint,
presumably curing the deficiencies identified by the trial court. The trial court
did not impose a deadline within which to file an amended complaint.
5 This transcript, which was in the reproduced record, was not transmitted to
this Court as part of the certified record. We remind the parties that they
“have a duty to take steps necessary to assure that the appellate court has a
complete record on appeal, so that the appellate court has the materials
necessary to review the issues raised on appeal. Ultimate responsibility for a
complete record rests with the party raising an issue” on appeal. Pa.R.A.P.
1921 cmt. Because neither party disputes the accuracy of the transcript, this
Court will consider it. See id.
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order listed the caption numbers for both dockets, but was only actually
docketed at 2018-452. Appellant filed a timely notice of appeal and timely
filed a court-ordered Pa.R.A.P. 1925(b) statement at docket 2018-452.6
Appellant raises one issue: “Whether an individual who isn’t a party to
a cause of action, or as in this case, a statement of claim, can unilaterally and
without permission or leave of court pursuant to [Pa.R.C.P.] 1033 amend
pleadings of record?” Appellant’s Brief at 4 (some alterations).
Initially, we address whether we have jurisdiction. See Massaro v.
Tincher Contracting LLC, 204 A.3d 932, 933 (Pa. Super. 2019) (“We may
raise whether this Court has jurisdiction sua sponte.” (citation omitted)).
All civil claims must be raised in a civil action. See Pa.R.C.P. 1001
(“There shall be a ‘civil action’ in which shall be brought all claims for relief”).
“A cause of action is the state of facts which entitle a person to seek a judicial
remedy in his behalf.” Nuhfer v. Nuhfer, 599 A.2d 1348, 1350 (Pa. Super.
1991) (citation and quotation marks omitted). “A cause of action consists of
a cognizable right and its wrongful violation.” Kosjer v. Commonwealth
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6 Appellant did not file a notice of appeal in docket 2016-2841 because the
trial court did not docket the underlying order in 2016-2841. We remind the
parties that our Supreme Court in Commonwealth v. Walker, 185 A.3d 969(Pa. 2018), held that “when a single order resolves issues arising on more
than one lower court docket, separate notices of appeal must be filed. The
failure to do so will result in quashal of the appeal.” Walker, 185 A.3d at 977
(footnote omitted). In light of our disposition, however, we need not apply
Walker.
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Dept. of Public Welfare, 464 A.2d 687, 688 (Pa. Cmwlth. 1983). “A wrong
cognizable in court is a violation of such a right, and results in a cause of
action if it produces an injury to the holder of the right.” Id. (citations
omitted).
A cause of action must be raised in a pleading, specifically a complaint.
See Pa.R.C.P. 1017. The actual filing of a complaint containing a cause of
action commences the civil action. See Pa.R.C.P. 1007.7 A party may file a
preliminary objection to the complaint that seeks to dismiss the complaint.
See Pa.R.C.P. 1028. The trial court may sustain such a preliminary objection
but grant the plaintiff leave to amend the complaint. Such an order is
generally considered interlocutory. See Mier v. Stewart, 683 A.2d 930 (Pa.
Super. 1996) (holding that order dismissing cause of action without prejudice
and permitting plaintiff to file amended complaint was interlocutory).
Here, on August 16, 2018, the trial court sustained Appellee’s
preliminary objections and dismissed without prejudice Appellant’s civil action
to quiet title. Order, 8/16/18. Appellant, however, elected to not file an
amended complaint and instead filed a petition to strike amended statement
of claim. But the trial court had dismissed Appellant’s complaint without
prejudice. Without a complaint, there is no civil action. See Pa.R.C.P. 1007.
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7 We acknowledge that a civil action may be commenced by filing a praecipe
for a writ of summons. That distinction is unnecessary for our disposition.
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Without a civil action, there is no cause of action upon which Appellant could
file such a petition for relief. See Pa.R.C.P. 1001, 1007; Nuhfer, 599 A.2d at
1350. The trial court properly concluded no civil action was before it.
Accordingly, the order appealed from is void, and we quash the appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/03/2019
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