Martin, J. v. Rite Aid of Pennsylvania ( 2015 )

J-A06004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH MARTIN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RITE AID OF PENNSYLVANIA, INC. AND
NORTH BROAD DEVELOPMENT
COMPANY,
Appellees No. 1447 EDA 2014
Appeal from the Order Entered April 1, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): May Term, 2012 No. 1367
BEFORE: PANELLA, J., OTT, J., JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED MAY 11, 2015
Appellant, Joseph Martin, appeals from the order dismissing his
amended complaint with prejudice as untimely filed under Rule 1028(e) of
the Pennsylvania Rules of Civil Procedure. We reverse and remand.
On May 16, 2010, Martin went to a Rite Aid store located at 2131 N.
Broad Street, Philadelphia. As he was leaving the premises, three males
robbed and assaulted him. Martin sought help from security and other
personnel employed on the premises, but his efforts were rebuffed.1 He filed
a complaint on July 11, 2012, alleging negligence against Rite Aid and North
Broad Development Corporation (“NBDC”), the corporation that owns and
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1
For purposes of this appeal and in light of the procedural posture of this
case, we accept as true the pleadings set forth in Appellant's complaint.
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leases the property to Rite Aid. Rite Aid and NBDC filed preliminary
objections asserting, among other things, that Martin had failed to join his
assailants as indispensable parties. The trial court sustained the objection,
dismissed the complaint with prejudice, and ruled that the remainder of the
preliminary objections were moot. Appellant appealed, and on November
19, 2013, this Court reversed and remanded for consideration of the
remaining preliminary objections. See Martin v. Rite Aid of
Pennsylvania, 80 A.3d 813, 814 (Pa. Super. 2013) (Martin I).
On December 9, 2013, the trial court issued an order granting Martin
leave to file an amended complaint. Notice of the order was served on
December 13, 2013. This Court returned the records to the lower court on
January 9, 2014. Martin filed an amended complaint on January 21, 2014.
Rite Aid and NBDC again filed preliminary objections, asserting, among other
things, that the amended complaint had been filed 19 days late. The trial
court agreed, dismissed the amended complaint with prejudice as untimely-
filed under Pa.R.C.P. 1028(e),2 and deemed the remaining preliminary
objections moot. After the denial of his motion for reconsideration, Martin
timely appealed.
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2
Rule 1028(e) provides, in relevant part: “If the filing of an amendment, an
amended pleading or a new pleading is allowed or required, it shall be filed
within twenty days after notice of the order[.]”
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Martin has raised two issues for our review: (1) whether the lower
court had “subject matter jurisdiction on December 9, 2013, when the
record was not returned by the Superior Court until January 9, 2014” and
(2) whether the lower court’s December 9, 2013, order is a nullity.
Appellant’s Brief at 5.
We review the trial court’s grant of preliminary objections de novo.
Our scope of review is plenary. See Martin I, 80 A.3d at 814.
Our Rules of Appellate Procedure provide, in relevant part:
Rule 2591. Proceedings on Remand.
(a) General rule. On remand of the record the court or other
government unit below shall proceed in accordance with
the judgment or other order of the appellate court and,
except as otherwise provided in such order, Rule 1701(a)
(effect of appeals generally) shall no longer be applicable
to the matter.
Pa.R.A.P. 2591(a) (emphasis added).
Cases construing Rule 2591(a) have held that the trial court is without
jurisdiction to enter an order prior to the remand of the record; an order so
entered is a legal nullity. See, e.g., Commonwealth v. Salley, 957 A.2d
320, 323 (Pa. Super. 2008); Stanton v. Lackawanna Energy, Ltd., 915
A.2d 668, 672-673 (Pa. Super. 2007); Bell v. Kater, 839 A.2d 356, 358
(Pa. Super. 2003); Commonwealth v. Bishop, 829 A.2d 1170, 1172 (Pa.
Super. 2003); Commonwealth v. Bond, 504 A.2d 869, 879 (Pa. Super.
1986) (Spaeth, P.J., concurring). See also 20 G. Ronald Darlington, et al.,
Pennsylvania Appellate Practice § 2591:1 (2013-2014 ed.) (“The trial court
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or other government unit may not proceed in the matter before the record
has been remanded if the appellate court has remanded the matter.”)
(footnote omitted).
Here, pursuant to Pa.R.A.P. 2591(a) and precedential case law and a
leading treatise, the trial court was not re-vested with jurisdiction until
January 9, 2014—the day the lower court received the record from this
Court. Because the trial court did not receive the record until that day, it
lacked jurisdiction to enter its order of December 9, 2013. That order is,
thus, a legal nullity. As a result, the trial court’s April 1, 2014 order
dismissing the complaint is likewise a legal nullity. Accordingly, we reverse
the April 1, 2014 order and remand for the trial court to enter an order in
accordance with our November 19, 2013 opinion.
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
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