Kheifetz, A. v. TLA Cinema ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALEX KHEIFETZ, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TLA CINEMA,
Appellee No. 3618 EDA 2015
Appeal from the Order Entered October 23, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2015 No. 02400
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 17, 2016
Appellant, Alex Kheifetz, appeals pro se from the trial court’s order
granting Appellee’s, TLA Cinema (hereinafter, “TLA”), preliminary objections
to Kheifetz’s civil complaint, which ostensibly presented a breach of contract
claim. The trial court granted TLA’s preliminary objections due to Kheifetz’s
failure to comply with Pennsylvania’s Rules of Civil Procedure. After careful
review, we affirm.
According to averments in Kheifetz’s complaint, he had purchased two
tickets to attend an event at a TLA facility in Philadelphia scheduled for May
5, 2011. Appellant’s Pro Se Complaint (hereinafter, “the Complaint”),
9/8/15, at 1 (unnumbered pages). Kheifetz paid $40 for the pair of tickets.
Id. On May 5, 2011, near the venue, Kheifetz attempted to resell his extra
ticket to passersby. Id. at 2. At some point thereafter, Kheifetz was
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confronted by TLA’s security personnel, whom Kheifetz alleges assaulted him
and confiscated his extra ticket before the police intervened. Id. Kheifetz
also claimed to have incurred medical costs as a result of his confrontation
with TLA’s security. Id. at 3.
Kheifetz initially filed a claim before the Philadelphia Municipal Court
on May 4, 2015, which was later dismissed by that court on July 21, 2015,
on statute of limitations grounds.1 Kheifetz filed a notice of appeal from the
Municipal Court’s order on August 19, 2015. On August 24, 2015, TLA filed
a Praecipe for Rule to File Complaint. Kheifetz then filed the Complaint on
September 8, 2015. TLA filed preliminary objections to the Complaint on
September 30, 2015, and Kheifetz filed an answer to TLA’s preliminary
objections on October 23, 2015. That same day, the trial court issued the
following order:
AND NOW, this 23 day of OCT, 2015, upon consideration
of the Preliminary Objections of Defendant, TLA Cinema, to
Plaintiff’s Complaint, and any Response thereto, it is hereby
ORDERED AND DECREED that said Preliminary Objections are
SUSTAINED, Plaintiff’s Complaint is hereby DISMISSED with
prejudice.
Order, 10/23/2015, at 1 (single page) (emphasis in original).
Kheifetz filed a timely notice of appeal to this Court. The trial court did
not order him to file a Pa.R.A.P. 1925(b) statement, and Kheifetz did not file
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1
It appears that Kheifetz’s initial claim before the Municipal court sounded
solely in tort, for which the statute of limitations is two years. See 42
Pa.C.S. § 5524.
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one. The trial court issued its Rule 1925(a) opinion on February 3, 2016.
Appellant now presents the following questions for our review, reproduced
verbatim:
1) Whether it Be Reasonably Concluded that Proper Service Of
The Timely Appeal "Notice Of Appeal" was made to the Court Of
Common Pleas?
2) Whether the Dismissal Of The Complaint as well as the Civil
Suit Against Defendant for Breach Of Contract eliminating
Plaintiff's Due Process rights was premature? Should the Case
Dismissal Be Vacated and Remanded back to the Court Of
Common Pleas for Due Process (Arbitration), or Should the Case
Dismissal Be Vacated and Remanded back to the Court Of
Common Pleas with an order requiring Appellant to file an
"Amended Complaint "?
3) (Optional for Court To Consider) Issue and establish
Precedent (via order) that a Plaintiff has a legally protected right
to sue and recover damages resulting from a Breach Of Contract
that occurred because a party intentionally attacked someone to
eliminate or confiscate such contract? Or To consider the
establishment of precedent that a Plaintiff has a legally protected
right to sue and recover damages resulting from a Breach Of
Contract that occurred because a party intentionally Breached
such contract for possible financial gain?
Appellant’s Brief, at 2-3.
Kheifetz’s first claim concerns his purported failure to serve the trial
court with a copy of his notice of appeal to the Superior Court. Kheifetz
appears to be responding to the trial court’s summary of the procedural
history of this case, wherein it notes that while it was aware that Kheifetz
had filed a timely notice of appeal with this Court, it had “not been served
with the notice” at the time of the filing of its Rule 1925(a) opinion. Trial
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Court Opinion (TCO), 2/3/16, at 2. The opinion then makes no further
mention of this matter.
Pa.R.A.P. 906(a) provides, in pertinent part, as follows:
(a) General Rule. Concurrently with the filing of the notice of
appeal under Rule 905 (filing of notice of appeal), the appellant
shall serve copies thereof, and of any order for transcript, and
copies of a proof of service showing compliance with this rule,
upon:
…
(2) The judge of the court below, whether or not the
reasons for the order appealed from already appear of
record;
Pa.R.A.P. 906(a).
However, Rule 902 provides that:
An appeal permitted by law as of right from a lower court to an
appellate court shall be taken by filing a notice of appeal with
the clerk of the lower court within the time allowed by Rule 903
(time for appeal). Failure of an appellant to take any step other
than the timely filing of a notice of appeal does not affect the
validity of the appeal, but it is subject to such action as the
appellate court deems appropriate, which may include, but is not
limited to, remand of the matter to the lower court so that the
omitted procedural step may be taken.
Pa.R.A.P. 902 (emphasis added).
Instantly, we cannot perceive any prejudice to TLA (who was served
by Kheifetz with a copy of his notice of appeal) resulting from this service
deficiency to the court, nor did this technical service deficiency appear to
hinder the trial court’s drafting of its opinion. Moreover, the trial court was
clearly aware that the notice of appeal had been timely at the time it filed its
opinion. Accordingly, under the authority of Rule 902, we decline to take
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any further action with regard to any deficiencies attendant to Kheifetz’s
purported failure to serve the trial court with a copy of his notice of appeal.
See Meadows v. Goodman, 993 A.2d 912 (Pa. Super. 2010) (declining to
quash an appeal where the appellant failed to properly serve the trial court
with a copy of the appellant’s timely-filed notice of appeal).
In his second claim, Kheifetz asserts that the trial court should not
have granted TLA’s preliminary objections. Essentially, Kheifetz admits that
the Complaint suffered deficiencies of form related to the Rules of Civil
Procedure, but he complains that the trial court should have allowed him to
proceed with the defective complaint, premised on the notion that it fairly
put TLA on notice of the nature of his contract claim. Alternatively, he
asserts that the trial court should have granted him leave to amend the
Complaint.
“Our standard of review of an order of the trial court overruling [or
granting] preliminary objections is to determine whether the trial court
committed an error of law. When considering the appropriateness of a ruling
on preliminary objections, the appellate court must apply the same standard
as the trial court.” De Lage Landen Services, Inc. v. Urb. Partn., LLC,
903 A.2d 586, 589 (Pa. Super. 2006) (quoting Mar–Eco, Inc. v. T & R &
Sons Towing & Recovery, Inc., 837 A.2d 512, 514 (Pa. Super. 2003)).
The trial court granted TLA’s preliminary objections based the
following:
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Plaintiff Kheifetz's Complaint was a chronology of the events that
transpired in front of Defendant-TLA Cinema's business on May
5, 2011. The pleading alludes to a breach of contract, but
essentially provides a narrative of Plaintiff Kheifetz[’s]
attempting to sell tickets in front of the TLA Cinema and the
subsequent incident with a security guard for which the police
were called. The pleading failed to comply with Pa.R.C.P 1022,
which requires that every pleading be divided into paragraphs
numbered consecutively and that each paragraph contain, as far
as practicable, only one material allegation. The pleading also
failed to provide the contract alluded to in the description of
events.
TCO at 2.
We begin our analysis by determining whether the trial court was
correct in concluding the Complaint violated Pennsylvania’s Rules of Civil
Procedure. Rule 1022 provides that, “[e]very pleading shall be divided into
paragraphs numbered consecutively. Each paragraph shall contain as far as
practicable only one material allegation.” Pa.R.C.P. 1022. It is clear that
the Complaint does not meet this requirement. The Complaint is not divided
into numbered paragraphs, and the paragraphs that are present assert
multiple material allegations. There appears to have been no attempt by
Kheifetz to comply, much less substantially comply, with Rule 1022.
Although not mentioned by the trial court, for the same reasons, Kheifetz’s
complaint also runs afoul of Rule 1019(a) (“The material facts on which a
cause of action or defense is based shall be stated in a concise and summary
form.”).
Additionally, Rule 1019(i) provides that: “When any claim or defense is
based upon a writing, the pleader shall attach a copy of the writing, or the
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material part thereof, but if the writing or copy is not accessible to the
pleader, it is sufficient so to state, together with the reason, and to set forth
the substance in writing.” Pa.R.C.P. No. 1019(i). Here, Kheifetz alleged that
the tickets constituted a contract (or contracts) with TLA, and pled a breach
of that contract (or contracts), but he failed to attach them to his complaint.
Kheifetz now complains that he could not provide the seized ticket because it
had been confiscated.2 However, his contract claim in the Complaint also
seeks to recover for losses related to the unseized ticket, and yet Kheifetz
provided no explanation in the Complaint, nor does he provide one now on
appeal, regarding why the unseized ticket could not have been provided.
Thus, we conclude that the record in this case supports the trial court’s
findings with regard to the Complaint’s violations of the Rules of Civil
Procedure. Thus, we now turn to whether the trial court abused its
discretion by granting TLA’s preliminary objections on that basis and,
relatedly, whether Kheifetz should have been granted leave to amend the
Complaint prior to dismissal.
Kheifetz cites several federal authorities for the proposition that pro se
pleadings are to be construed liberally. This is the standard for pro se
litigants seeking relief in federal courts, especially with regard to
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2
With respect to the seized ticket, we agree with Kheifetz that this is true,
by reasonable inference from the pleaded facts; however, his complaint did
not explicitly set forth his inability to conform with Rule 1019(i).
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incarcerated, pro se litigants. See e.g., Haines v. Kerner, 404 U.S. 519,
520–21 (1972) (holding that “the allegations of [a] pro se complaint” are
held “to less stringent standards than formal pleadings drafted by lawyers”).
However, Kheifetz is not incarcerated, and this Court has held that, in the
civil context, “[a] pro se litigant is not absolved from complying with
procedural rules.” Hoover v. Davila, 862 A.2d 591, 595 (Pa. Super. 2004).
Moreover, Pennsylvania’s Rules of Civil Procedure dictate that preliminary
objections may be filed on the basis that a complaint fails “to conform to law
or rule of court.” Pa.R.C.P. 1028(a)(2). Kheifetz cites to no legal authority
suggesting that his failure to conform to the Rules of Civil Procedure can
simply be overlooked. Thus, the court did not err in granting TLA’s
preliminary objections when it failed to ignore the procedural deficiencies of
the Complaint.
Accordingly, we now turn to consider whether Kheifetz was entitled to
amend the Complaint.
A plaintiff is entitled to amend if the complaint doesn't exclude
the possibility of recovery under a better statement of facts.
This is especially true when a plaintiff's claim is dismissed on a
defendant's demurrer[.] In the event a demurrer is sustained
because a complaint is defective in stating a cause of action, if it
is evident that the pleading can be cured by amendment, a court
may not enter final judgment, but must give the pleader an
opportunity to file an amended complaint. This is not a matter
of discretion with the court but rather a positive duty.
Framlau Corp. v. Delaware County, 299 A.2d 335, 337 (Pa. Super. 1972)
(internal citation omitted).
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Here, however, the basis on which the trial court granted TLA’s
preliminary objections was not in the nature of demurrer, that is, it was not
based on Kheifetz’s failure to state a claim upon which relief could be
granted. Instead, the trial court granted TLA’s preliminary objections
because the Complaint failed to adhere to Pennsylvania’s Rules of Civil
Procedure. As such, the trial court was not devoid of discretion or subject to
a “positive duty” to permit Kheifetz to amend the Complaint. Id.In any event, there is nothing of record indicating that Kheifetz ever
sought leave to amend the Complaint,3 nor does it appear that he ever
attempted to file an amended complaint as permitted by Rule 1028(c)(1) (“A
party may file an amended pleading as of course within twenty days after
service of a copy of preliminary objections. If a party has filed an amended
pleading as of course, the preliminary objections to the original pleading
shall be deemed moot.”). Kheifetz is, therefore, intimating that the trial
court should have sua sponte directed him to amend the Complaint despite
his failure to request such relief, and despite his failure to avail himself of
the relief already available under Rule 1028(c)(1).
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3
In his answer to TLA’s preliminary objections, Kheifetz not only failed to
request leave to amend the Complaint, he essentially requested relief
inconsistent with a request for leave to amend. See Kheifetz’s Answer to
TLA’s Preliminary Objections, 10/23/15, at 8 (unnumbered pages) (seeking
to “[p]ermit Plaintiff’s Complaint[] to stand based on a clear understanding
of the damages requested and to proceed to mandatory mediation and
possible arbitration[.]”) (unnecessary capitalization omitted).
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We are aware of no authority suggesting that a trial court is under an
obligation to sua sponte direct litigants to amend their pro se complaints
when those complaints fail to adhere to Pennsylvania’s Rules of Civil
Procedure. To the contrary, in Desanctis v. Pritchard, 803 A.2d 230 (Pa.
Super. 2002), the appellant argued that the trial court had “erred when it
dismissed his Complaint rather than granting him leave to amend.” Id. at
233. The appellant in Desanctis “never filed an amended pleading during
the period following service, and thereafter never requested leave to
amend.” Id. (referencing the unconditional right to amend a complaint
following preliminary objections pursuant to Rule 1028(c)(1)).
Consequently, we held that “[h]aving never sought the remedy, [the
a]ppellant may not now complain that the trial court erred in failing to grant
it.” Id.Although Desanctis did not involve a pro se litigant, we see no basis
for deviating from its holding. Kheifetz did not take advantage of Rule
1028(c)(1), which permitted him to amend the Complaint “as of course
within twenty days after service of a copy of preliminary objections[,]” nor
did he ever request leave to amend the Complaint in the trial court.
Instead, Kheifetz requested that the trial court proceed under his
procedurally defective complaint. We are aware of no authority permitting
the trial court to simply ignore procedural deficiencies in a complaint when
such deficiencies are raised in preliminary objections. Kheifetz was made
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aware of those deficiencies, yet failed to take advantage of the extremely
permissive nature of Rule 1028(c)(1) to correct them. Accordingly, we
conclude that the trial court did not commit an error of law in granting TLA’s
preliminary objections.
Finally, because of our disposition with regard to Kheifetz’s second
claim, it would be improper to address his third and, therefore, we decline to
do so.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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