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stating that "[i]n Pennsylvania, the purpose of an appeal de novo is to give a litigant a new trial without reference to the record established in the minor court ...."
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No. 653 MDA 2007.
Submitted February 27, 2008.
Filed: June 2, 2008.
Appeal from the Court of Common Pleas, Luzerne County, Civil Division, No. 12648 of 2006, Smith, J.
James R. Scallion, Drums, for appellant.
Jonathan A. Lang, Drums, for appellee.
BEFORE: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
¶ 1 Overland Enterprise, Inc., c/o Kyle Knosp, (Overland), appeals the order entered on January 31, 2007, in the Court of Common Pleas of Luzerne County, that struck off as untimely the appeal of Overland from a judgment entered against it by a district justice. Upon review, we affirm.
¶ 2 The relevant facts and procedural history of this case are as follows: On June 30, 2006, Gladstone Partners, L.P., (Gladstone), successor in interest to PCA Corporation, lessor of a commercial lease held by Overland, initiated suit against Overland in magisterial district court to obtain monies owed for back rent and to obtain possession of the leased property. The magisterial district court found in favor of Gladstone as to both damages and possession and issued a judgment in favor of Gladstone on August 4, 2006. Thereafter, Overland filed a praecipe for writ of certiorari of the magisterial district court's decision with the Luzerne County Court of Common Pleas and a petition for special relief.
Overland's petition for special relief requested the trial court to entertain certiorari review of the magisterial district court's judgment without the requirement that Overland post bond and also asserted that Gladstone lacked standing to institute the landlord-tenant action.
¶ 3 The trial court issued a writ of certiorari to the magisterial district court, and a hearing on the writ was held on October 16, 2006, before the trial court. Thereafter, on October 25, 2006, the trial court entered the following order:
The writ of certiorari and its related matters were docketed at number 9528 of 2006, Luzerne County Civil Docket.
AND NOW, this 25th day of October 2006, after review, and after oral argument, it is hereby ORDERED, ADJUDGED, and DECREED as follows:
1. The Petition for Special relief filed on behalf of [Overland], insofar as it relates to the amount of the judgment entered by the [magisterial district court] in the above-captioned matter on August 4, 2006, is GRANTED.
2. The judgment amount entered by the [magisterial district court] in the above-captioned matter, in the amount of $36,148.35 is rescinded, and judgment in the amount of $7,648.35 is entered on behalf of [Gladstone] and against [Overland].
3. The Prothonotary is hereby directed to mail notice of the entry of this Order to all counsel of record pursuant to Pa.R.C.P. 236
BY THE COURT:
/s/ Hon. Hugh Mundy
Record 53, Exhibit 38 (Trial court order, 10/25/2006).
¶ 4 Overland did not seek reconsideration of the trial court's order, and it did not appeal the trial court's order to this Court. Instead, on November 17, 2006, Overland sought review of the magisterial district court's judgment a second time by filing an appeal de novo from the judgment to the Luzerne County Court of Common Pleas. Gladstone responded to Overland's appeal by filing a motion to strike Overland's appeal as untimely.
The appeal de novo was docketed at number 12648 of 2006, Luzerne County Civil Docket.
¶ 5 The trial court conducted a hearing on Gladstone's motion on January 31, 2007, and, at the conclusion of the hearing, the trial court struck off Overland's appeal as untimely. Thereafter, Overland filed a notice of appeal to this Court. The trial court ordered Overland to file a concise statement of matters complained of on appeal, and it complied. Thereafter, the trial court authored an opinion that addressed the issues presented in Overland's concise statement.
We note that, after entry of the trial court's January 31, 2007 order, Overland filed a praecipe to reinstate the writ of certiorari prior to filing its notice of appeal to this Court. In response, Gladstone filed a motion to quash Overland's praecipe. The trial court conducted a hearing on the matter, and on February 8, 2007, it ruled that certiorari review and relief had been granted in Overland's favor previously by virtue of the trial court's October 25, 2006 order. Overland attempted to appeal the February 8, 2007 order to this Court at 427 MDA 2007. On its notice of appeal, Overland listed the trial court docket number as 12648 of 2006. However, as stated above, the docket number for the certiorari proceedings was Luzerne County Civil Docket number 9528 of 2006. Consequently, Overland's appeal was quashed by this Court due to the fact that the trial court did not enter an order on February 8, 2007, at docket number 12648 of 2006. See Gladstone Partners, L.P. v. Overland Enterprise, Inc., 427 MDA 2007 (Pa.Super. filed 7/17/2007) (unpublished order). We denied reconsideration of our July 17, 2007 order because Appellant failed to correct the defect in its notice of appeal. See Gladstone Partners, L.P. v. Overland Enterprise, Inc., 427 MDA 2007 (Pa.Super. filed 8/6/2007) (unpublished order). As such, the propriety of the trial court's October 25, 2006 order is not before this Court.
¶ 6 Overland's sole issue on appeal is that the trial court abused its discretion by striking his appeal de novo of the magisterial district court's judgment because the remedies of an appeal de novo and writ of certiorari can and do exist simultaneously, and, as such, the time for taking an appeal de novo is tolled while certiorari proceedings are pending. As Overland's issue presents a pure question of law, our standard of review is de novo and our scope of review is plenary. See Hartford Ins. Co. v. O'Mara, 907 A.2d 589, 593 (Pa.Super. 2006).
¶ 7 In Pennsylvania, the purpose of an appeal de novo is to give a litigant a new trial without reference to the record established in the minor court, whereas certiorari connotes a review of the record established in the minor court with an eye to cure defects in procedure and legal error. See Pa.R.C.P.M.D.J. 1001 (definition of "appeal" and " certiorari"); see also, Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263, 1264 n. 2 (1986) (explanation of difference between appeal de novo and certiorari); see also Laska v. Zelazowski 134 Pa.Super. 311, 4 A.2d 207, 209 (1939) (purpose of certiorari is to cure judgment entered without adequate procedural predicate). The Pennsylvania Constitution does not guarantee to a litigant the remedy of certiorari review, but, rather, the Judicial Code permits the courts of common pleas to issue writs of certiorari as they had done at common law. See, e.g., 42 Pa.C.S.A. § 934. As such, the appellate courts of this Commonwealth have described certiorari review as an alternative to an appeal de novo. See Speights, 509 A.2d at 1264 n. 2.
¶ 8 Pennsylvania Magisterial District Judge Rule 1015 expressly prohibits a litigant from availing themselves of both the remedies of an appeal de novo and certiorari review. The Rule states the following:
A judgment may not be the subject of both certiorari and appeal. The prothonotary shall mark stricken from the record any writ of certiorari concerning a judgment as to which an appeal is pending if proof of service of copies of the notice of appeal has been filed. If the appeal is stricken or voluntarily terminated, the writ of certiorari shall be reinstated upon praecipe of the party obtaining the writ.
¶ 9 The explanatory note to the Rule reveals that, in all cases, the remedy of appeal de novo takes precedence over certiorari review due to the guarantee of the right to appeal found in Art. V § 9 of the Pennsylvania Constitution. Pa. R.C.P.M.D.J. 1015 note. Thus, the simultaneous filing of an appeal de novo and a praecipe for writ of certiorari will result in the striking of the writ if it is later granted by the court of common pleas. Id. Further, the explanatory note to Rule 1015 also reveals that, in the rare case where one party appeals de novo and the other party seeks certiorari, the writ of certiorari would be stricken in favor of the appeal de novo. Therefore, contrary to Overland's argument, the remedies cannot and would not exist simultaneously. As such, we conclude that Rule 1015 clearly requires a litigant desiring to challenge a magisterial district court's judgment to choose either to appeal de novo to the court of common pleas or to seek certiorari review in the court of common pleas. Cf. Speights, 509 A.2d at 1264 n. 2 ( certiorari review is an alternative procedure to appeal de novo).
We recognize that we are not bound by the explanatory notes contained within the Rules of Civil Procedure. See Rieser v. Glukowsky, 435 Pa.Super. 530, 646 A.2d 1221, 1225 (1994). However, the explanatory notes are persuasive authority in a court's interpretation of the meaning of the rule. Id., 646 A.2d at 1225. This is especially true where the explanation given in the note is consistent with the language of the rule. Id., 646 A.2d at 1225.
¶ 10 Likewise, we are not convinced by Overland's assertion that the grant of a writ of certiorari tolls the time for the filing of an appeal de novo. It is a well-settled principle of the appellate law of this Commonwealth that courts cannot extend appeal deadlines without a showing on the part of the putative appellant of the existence of a breakdown in the processes of the court or fraud that would justify an appeal nunc pro tunc. See Dacar Chem. Prods, v. Comtech Indus. Inc., 52 Pa. D. C. 4th 326, 334 (C.P.Allegheny, 2001). The Magisterial District Judge Rules state the time limits for seeking appeal de novo and certiorari review with specificity. A party challenging the subject matter or procedural jurisdiction of a magisterial district court via writ of certiorari may do so at any time after entry of the magisterial district court's judgment; otherwise, the time limit for seeking certiorari review is 30 days following entry of judgment. See Pa.R.C.P.M.D.J. 1009B. Whereas, a party appealing de novo to the court of common pleas is constrained by a 30-day time limitation from the entry of judgment or, in the case of judgments of possession of real property emanating from residential leases, a 10-day time limitation from the entry of judgment. See Pa.R.C.P.M.D.J. 1002A, 1002B. Therefore, to find that the grant of a writ of certiorari tolls the time for taking appeal de novo would permit the courts of common pleas to extend the time for taking appeal de novo to a potentially-limitless period. We decline Overland's invitation to reach such a conclusion. Dacar, 52 Pa. D. C. 4th at 334. Consequently, Overland's appeal de novo, filed more than three months after entry of the magisterial district court's judgment, is patently untimely, and we are satisfied that the trial court did not err by striking off the untimely appeal de novo.
Pennsylvania Magisterial District Judge Rules 1002A and 1002B permit the filing of an appeal beyond the stated time periods with leave of court and upon good cause shown. In the present case, Overland did not request the leave of court or demonstrate cause as to why their appeal was filed beyond the 30-day time limit. Accordingly, we need not consider this grace proviso in the present case.
¶ 11 Order affirmed.