Opinion
J-A24014-18 No. 1828 MDA 2017
11-21-2018
ALAN COHICK Appellant v. MARCELLA CARR
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from Orders Entered October 26, 2017 and November 16, 2017
In the Court of Common Pleas of Lycoming County
Civil Division at No(s): 17-1136 BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY OTT, J.:
Alan Cohick appeals from two orders entered in the Lycoming County Court of Common Pleas rejecting his belated attempt to appeal from a judgment of $12,000.00 issued by a magisterial district justice ("MDJ") in favor of Marcella Carr in the underlying landlord/tenant action. The order entered October 26, 2017, denied Cohick's petition to reinstate his appeal and/or open the judgment, and granted Carr's motion to quash the petition. The order entered November 16, 2017, denied Cohick's petition to allow an appeal nunc pro tunc from the judgment. For the reasons below, we affirm.
The underlying landlord/tenant dispute began as a claim for possession filed by the landlord, Cohick, against the tenant, Carr. The action was docketed in the magisterial district court at Docket No. MJ-29101-LT-149-2017. Carr subsequently filed a cross-complaint seeking money damages based upon, inter alia, Cohick's breach of the implied warranty of quiet enjoyment and habitability. The cross-complaint was assigned a separate docket number, MJ-29101-CV-89-2017. A hearing on both claims was conducted by an MDJ on July 5, 2017. At the conclusion of the hearing, the MDJ found for Carr on both the claim of possession and the cross-claim for damages, and awarded her the jurisdictional limit of $12,000.00.
The trial court summarized the procedural history that followed:
The judgment on [Cohick's] claim for possession was entered on a form Notice of Judgment/Transcript - Residential Lease, and the judgment on [Carr's] cross-complaint for money damages was entered an a form Notice of Judgment/Transcript - Civil Case.Trial Court Opinion and Order, 10/26/2017, at 1-2.
[Cohick] filed a Notice of Appeal on August 3, 2017, and attached a copy of the Notice of Judgment/Transcript - Residential Lease to that Notice of Appeal, and listed only docket number MJ-29101-LT-149-2017 on the form. The Notice of Appeal was docketed to Common Pleas docket number 17-1136. [Cohick] filled out the form "praecipe to enter rule to file complaint," asking that [Carr] be ruled to file a complaint, but the Prothontary did not issue a rule, presumably because such a rule is to be issued only when the defendant is the appellant and not when the plaintiff is the appellant; in that case, the plaintiff is to file a complaint within twenty days, not the defendant. Pa.R.C.P.M.D.J. 1005B.
[Cohick] did not file a complaint within twenty days and on August 24, 2017[, Carr] filed a praecipe to strike the appeal. The appeal was stricken that day.
On September 5, 2017, [Carr] filed a certified copy of the Notice of Judgment/Transcript - Civil Case (which shows entry of a judgment in her favor and against [Cohick] on her cross-complaint) entered to docket number MJ-29101-CV-89-2017, and a praecipe for entry of that judgment in the Court of Common Pleas. These documents were docketed to Common Pleas docket number 17-1311. Judgment [in the amount of $12,000.000] was entered that day, to that Common Pleas docket number.
On September 7, 2017, Cohick filed a petition to reinstate the appeal, in which he alleged, as good cause for the reinstatement, that he had appealed both judgments, and, therefore, his failure to file a complaint should have only had the effect of abandoning his appeal from the possession claim, not from the civil judgment on Carr's cross-claim. See Petition to Reinstate Appeal, 9/7/2017, at ¶ 17. Presumably, Cohick had not yet received a copy of the judgment when he filed the petition because, on September 15, 2017, he filed an amendment to the petition, requesting the court also open the September 5th judgment. See Amendment to Petition to Reinstate Appeal, 9/15/2017, at ¶ 5 (arguing Cohick has a "meritorious defense to the judgment"). On October 16, 2017, Carr filed a motion to quash the amendment, asserting Cohick never appealed the judgment at Docket No. MJ-29101-CV-89-2017. The trial court conducted a hearing on October 18, 2017. Thereafter, on October 26, 2017, the court entered an order and opinion denying Cohick's petition to reinstate the appeal, and granting Carr's motion to quash the amendment. See Trial Court Opinion and Order, 10/26/2017. Cohick subsequently filed two additional motions: (1) a motion for post-trial relief on November 6, 2017, and (2) a petition to allow appeal nunc pro tunc on November 7, 2017. The court denied both motions on November 16, 2017, and this timely appeal follows.
We note the court summarily denied Cohick's motion for post trial relief because there was no trial held in the common pleas court. See Order, 11/16/2017.
The trial court did not direct Cohick to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Cohick raises two issues on appeal. First, he challenges the court's October 26, 2017, denial of his petition to reinstate his appeal of the $12,000.00 judgment. Cohick insists that under the rationale of the Pennsylvania Supreme Court's decision in American Appliance v. E.W. Real Estate Management , Inc., 769 A.2d 444 (Pa. 2001), the single notice of appeal he filed was sufficient to notify the court he intended to appeal both the claim for possession and the claim for money damages. See Cohick's Brief at 12. He asserts: "All of the information about the appeal required by the form notice of appeal for [R]ule 1002 was provided by attaching a judgment that contained both docket numbers, both captions, the disposition as to all claims, the grand total judgment and the lengthy written opinion by magistrate as to both claims." Id. at 13.
In American Appliance , the Pennsylvania Supreme Court held the appellant preserved an appeal from an MDJ judgment on both a complaint and cross-complaint even though he filed only one notice of appeal. The Court found the appellant's "attachment of notices of judgment from both the complaint and cross-complaint was sufficient to satisfy the requirement of [Pa.R.C.P.M.D.J.] 1002 as to the method of appeal." American Appliance , supra , 769 A.2d at 448. Furthermore, in that case, both the complaint and cross-complaint had the same docket number. See id.
Second, Cohick argues the trial court abused its discretion when it denied his petition to appeal nunc pro tunc, by failing to evaluate whether good cause existed to open the judgment, or a breakdown in the judicial system resulted in his failure to file a timely appeal. See id. at 15. He claims the court erroneously treated his petition to appeal nunc pro tunc as a "request for reconsideration of the denial of his petition to reinstate his appeal," rather than determining whether "good cause exists to allow the appeal." Id. Cohick further laments that while MDJ courts were created to provide "an easy avenue for pro se litigants to have their small claims heard[,]" the "procedural minefield for appeals ... does not comport with the stated ... goal[.]" Id. at 17.
We note Cohick filed the appeal from the MDJ judgment pro se, but has retained counsel for this appeal.
Upon our independent review of the record, the parties' briefs, and the relevant statutory and case law, we find the trial court thoroughly addressed and properly disposed of Cohick's claims on appeal in its orders filed on October 26, 2017, and November 16, 2017. See Opinion and Order, 10/26/2017, at 3-5 (holding (1) Cohick's notice of appeal listed only the docket number for the claim for possession and attached only the judgment for that claim; (2) Cohick's failure to list the docket number of the cross-claim or attach the judgment on the civil case "caused the Prothonotary to believe, and rightly so, that [he] was appealing only the judgment on his claim [for possession;]" (3) although the notice of judgment listed both judgments under its "Disposition Summary[,] ... the fact that only one of those [docket] numbers was placed on the Notice of Appeal completely nullifies any significance that might otherwise be attributed to the fact that both judgments are noted on the document[;]" and (4) the decision in American Appliance is distinguishable because "in that case the same docket number was assigned to both the claim and the cross-claim, and [in the present case, Cohick] did not attach both notices of judgment"); Order, 11/16/2017, at 1-2 (finding Cohick's reasons for requesting a nunc pro tunc appeal were the same as those rejected by the court when it denied his request to reinstate his appeal). Accordingly, we rest on the trial court's well-reasoned bases.
Opinion and Order, 10/26/2017, at 3.
Id. at 4.
Id. at 4-5.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/21/2018
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