Lynch, J. v. Zwercharowski, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN J. LYNCH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOSEPH ZWECHAROWSKI :
:
Appellee : No. 1041 EDA 2021
Appeal from the Order Entered February 19, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 160702062
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED JUNE 3, 2022
Appellant, John J. Lynch, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, denying his petition to strike
and/or open summary judgment. We affirm.
A prior panel of this Court set forth the relevant facts and procedural
history of this case as follows:
[Appellant] is an inmate that resides at SCI Camp Hill….
[Appellant] initiated this case against [Appellee, Joseph
Zwecharowski,] on July 21, 2016. On November 22, 2016,
[Appellant] filed his Third Amended Complaint against
[Appellee] arising from a dispute between tenants in
[Appellee’s] duplex residential property.
On December 8, 2016, [Appellee] filed Preliminary
Objections to [Appellant’s] Third Amended Complaint.
[Appellee] certified that, on December 8, 2016, [Appellee]
served the Preliminary Objections upon [Appellant] by
electronically filing them as well as by mailing a copy of
them by regular first class mail. [Appellant] did not file a
response to [Appellee’s] Preliminary Objections. On
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January 6, 2017, the trial court granted [Appellee’s]
Preliminary Objections in part and struck all claims for
housing discrimination, allegations of recklessness, claims
for punitive damages, and all references to State Farm
Insurance from [Appellant’s] Third Amended Complaint with
prejudice.
On February 20, 2018, [Appellee] filed a Motion to Remove
Case from Deferred Status (“Motion to Remove”).
[Appellee] certified that, on February 20, 2018, [Appellee]
served the Motion to Remove upon [Appellant] by
electronically filing it as well as by mailing a copy of it to
[Appellant] by regular first class mail. [Appellant] did not
file a response to [Appellee’s] Motion to Remove. On March
23, 2018, the trial court granted [Appellee’s] Motion to
Remove.
On April 17, 2018, [Appellee] filed a Motion for Summary
Judgment. [Appellee] certified that, on that same date,
[Appellee] served the Motion for Summary Judgment upon
[Appellant] by electronically filing the Motion as well as
mailing a copy of the Motion for Summary Judgment to
[Appellant’s address] by regular first class mail. [Appellant]
did not file a response to [Appellee’s] Motion for Summary
Judgment. On May 22, 2018, the trial court granted
[Appellee’s] Motion for Summary Judgment.
Lynch v. Zwecharowski, No. 1887 EDA 2018, unpublished memorandum at
1 (Pa.Super. filed Mar. 15, 2019) (quoting Trial Court Opinion, 8/2/18, at 1-
2), appeal denied, 656 Pa. 431, 221 A.3d 1202 (2019). On June 8, 2018,
Appellant timely filed a notice of appeal. This Court dismissed the appeal on
March 15, 2019, based on numerous deficiencies in Appellant’s brief. See id.On December 11, 2019, our Supreme Court denied allowance of appeal. Id.On January 23, 2020, Appellant filed a petition to strike and/or open
summary judgment, raising many of the same issues that he argued in his
2019 appeal to this Court. The trial court denied Appellant’s petition on
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February 19, 2020 as procedurally improper, noting that Appellant already
had a chance to present these claims on direct appeal. This appeal followed.1
The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed
none.
Appellant raises the following issues for our review:
Were there genuine issues in controversy that were not
resolved in order for a summary [judgment] to be entered?
Is it, gravely wrongful or flawed conduct or process,
constituting fraud upon the [c]ourt to make false and
misleading representations of facts and circumstances in
pleadings and/or motions?
Is it, gravely wrongful or flawed conduct or process
constituting fraud upon the [c]ourt to mail
pleadings/motions, containing dubious and/or false and
misleading information, to an address the adverse party
knows, reasonably should have known, and/or otherwise
has constructive notice that the addressee is not residing at
that address due to his arrest and imprisonment, and then
make certificate of service that the adverse party had
properly served the other party, while having knowledge the
other party would not receive notice, those pleadings and
not be afforded an opportunity to respond?
Did the [trial court] abuse its discretion with grievous
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1 Appellant’s pro se notice of appeal is dated March 10, 2020, although it was
not docketed until well after the 30-day appeal period. In response to this
Court’s rule to show cause, Appellant claimed the delay in docketing occurred
due to delays in the prison mail system and the Philadelphia trial court’s filing
office as a result of the COVID-19 pandemic. We deem Appellant’s filing timely
under these circumstances. See Commonwealth v. Chambers, 35 A.3d 34(Pa.Super. 2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012) (explaining
pro se prisoner’s document is deemed filed on date he delivers it to prison
authorities for mailing).
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oversight in denying [Appellant] appointment of counsel
with leave of the [c]ourt to amend complaint with counsel
for this cause of action upon claims of 42 USCS § 3604 F-1,
and 42 USCS § 3617, violations for retaliation eviction, and
the strong arm self-help eviction campaign, defendant
acquiesced to by the non program tenants pursuant to the
U.S. Fair Housing Act, 42 USCS § 3613, C?
Is [Appellant] a person protected by 42 USCS § 3604, F-1,
when this case was initiated?
Did, trial Court deprive [Appellant] after being granted [in
forma pauperis] status in complaint claiming acts of
violence, [U.S. Department of Housing and Urban
Development-VA Supportive Housing] residency, and
violation, of 42 USCS § 3617 in the Fair Housing Act, “due
process of law,” denying [Appellant]’s uncontested motion
for appointment of counsel pursuant to 42 USCS § 3613
b(1), in state Court action, pursuant to: 42 USCS § 3613, a
1(A), without a hearing where the matter was not dismissed
as frivolous with prejudice?
Did, the [trial court] have subject matter jurisdiction to
enter summary [judgment] prior to the remand by the U.S.
District Court from removal proceedings in that Court?
In light of the obvious lack of jurisdiction on the face of the
docket; did, the [trial court] abuse [its] discretion, with
grievous oversight of the lack of jurisdiction claim?
(Appellant’s Brief at unnumbered pp. 11-13) (reordered for purposes of
disposition).
Preliminarily, we recognize:
[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101. This Court may quash
or dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of
Appellate Procedure. Id. Although this Court is willing to
liberally construe materials filed by a pro se litigant, pro se
status confers no special benefit upon the appellant. To the
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contrary, any person choosing to represent himself in a legal
proceeding must, to a reasonable extent, assume that his
lack of expertise and legal training will be his undoing.
In re Ullman, 995 A.2d 1207, 1211-12 (Pa.Super. 2010), appeal denied, 610
Pa. 600, 20 A.3d 489 (2011) (some internal citations omitted). See also
Pa.R.A.P. 2114-2119 (addressing specific requirements of each subsection of
appellate brief).
Importantly, where an appellant fails to properly raise or develop his
issues on appeal, or where his brief is wholly inadequate to present specific
issues for review, a court will not consider the merits of the claims raised on
appeal. Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000) (holding appellant
waived claim where she failed to set forth adequate argument concerning her
claim on appeal; appellant’s argument lacked meaningful substance and
consisted of mere conclusory statements; appellant failed to cogently explain
or even tenuously assert why trial court abused its discretion or made error
of law). See also Lackner v. Glosser, 892 A.2d 21 (Pa.Super 2006)
(explaining appellant’s arguments must adhere to rules of appellate
procedure, and arguments which are not appropriately developed are waived
on appeal; arguments not appropriately developed include those where party
has failed to cite any authority in support of contention); Estate of Haiko v.
McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating rules of appellate
procedure make clear appellant must support each question raised by
discussion and analysis of pertinent authority; absent reasoned discussion of
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law in appellate brief, this Court’s ability to provide appellate review is
hampered, necessitating waiver of issue on appeal).
Instantly, Appellant’s brief fails to conform to the briefing requirements
set forth in the Rules of Appellate Procedure. At the outset, Appellant’s
statement of questions raises eight issues, his summary of the argument
section presents four issues, and the argument section appears to raise seven
issues. See Pa.R.A.P. 2119(a) (stating argument shall be divided into as
many parts as there are questions to be argued and shall have at head of each
part, particular point treated therein, followed by such discussion and citation
of authorities as are deemed pertinent). Although Appellant cites various
statutes and cases throughout the argument section, he does not explain what
propositions of law those statutes and cases stand for or how they apply to
the facts of his case. See id.Additionally, Appellant cites federal law and cases from other
jurisdictions which are not binding on this Court in any event. See generally
Griesser v. National R.R. Passenger Corp., 761 A.2d 606, 612 n.7
(Pa.Super. 2000), cert. denied, 534 U.S. 970, 122 S.Ct. 386, 151 L.Ed.2d 295(2001) (recognizing that decisions from federal district courts, federal circuit
courts, and out-of-state courts are not binding on this Court, even in cases
involving federal substantive law). Appellant’s failure to develop cogent
arguments with citation to relevant legal authority renders the majority of his
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claims waived on appeal.2 See Lackner, supra; Estate of Haiko, supra;Butler, supra.Nevertheless, in his seventh and eighth issues combined (as reordered),
Appellant argues the trial court lacked subject matter jurisdiction to enter
summary judgment in this matter. “The question of subject matter jurisdiction
may be raised at any time, by any party, or by the court sua sponte.”
Strasburg Scooters, LLC v. Strasburg Rail Rd., Inc., 210 A.3d 1064, 1067
(Pa.Super. 2019). “The want of jurisdiction over the subject-matter may be
questioned either in the trial court, before or after judgment, or for the first
time in an appellate court, and it is fatal at any stage of the proceedings, even
when collaterally involved unless there is an estoppel to raise the question.”
In re Patterson's Estate, 341 Pa. 177, 180, 19 A.2d 165, 166 (1941). Thus,
notwithstanding any deficiencies in Appellant’s brief, we will address these
claims.
Appellant argues that prior to the trial court’s entry of summary
judgment, Appellant petitioned the United States District Court for the Eastern
District of Pennsylvania to remove the matter to federal court. Appellant
asserts that his petition automatically removed the matter to the district court
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2 Moreover, we observe that Appellant’s first six issues (as reordered in the
statement of questions presented) appear to allege error with the trial court’s
grant of summary judgment. We reiterate that Appellant has already
exhausted his appeal rights concerning the court’s grant of summary
judgment.
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and the trial court was without jurisdiction to take any further action until the
matter was remanded by the district court. Appellant insists the district court
did not remand the matter to the trial court until July 6, 2018, and any action
taken by the trial court prior to remand is null and void. Appellant concludes
the trial court lacked subject matter jurisdiction to enter summary judgment
on May 22, 2018, while his petition for removal was still pending before the
district court, and this Court must grant him relief. We disagree.
Section 1446 of the United States Judicial Code sets forth the procedure
for removal of civil actions from state court:
§ 1446. Procedure for removal of civil actions
(a) Generally.—A defendant or defendants desiring to
remove any civil action from a State court shall file in the
district court of the United States for the district and division
within which such action is pending a notice of removal
signed pursuant to Rule 11 of the Federal Rules of Civil
Procedure and containing a short and plain statement of the
grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action.
* * *
(d) Notice to adverse parties and State court.—
Promptly after the filing of such notice of removal of a civil
action the defendant or defendants shall give written notice
thereof to all adverse parties and shall file a copy of the
notice with the clerk of such State court, which shall effect
the removal and the State court shall proceed no further
unless and until the case is remanded.
28 U.S.C. § 1446(a), (d).
This Court has explained:
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The federal court’s assertion of removal jurisdiction places
the state court’s jurisdiction in a state of suspension until
such time as the federal court remands the case to state
court…. Any proceedings that occur in the state court
between the filing of a copy of the federal removal petition
in the state court and the reinvestment of jurisdiction that
occurs upon the remand of the case to the state court are
void.
Lynn v. Aria Health Sys., 227 A.3d 22, 29 (Pa.Super. 2020). Nevertheless,
strict compliance with the requirements of Section 1446(d) is required to
complete the removal process, as “the requirements of filing of petitions for
removal with the clerk of the state court and the giving of notice to the adverse
party were not ‘modal’ or ‘formal’ but mandatory conditions precedent to the
termination of state court jurisdiction.” Crown Const. Co. v. Newfoundland
Am. Ins. Co., 429 Pa. 119, 126, 239 A.2d 452, 455 (1968). Therefore, “until
[p]rompt notice is given and a copy of the removal petition [p]romptly [is]
filed with the clerk of the state court, the state court retains its jurisdiction.”
Id.Instantly, the record demonstrates that Appellant failed to comply with
Section 1446(d). Although Appellant contends in his brief that he filed and
mailed a copy of his removal petition to Appellee’s counsel and the
Philadelphia County Court of Common Pleas Prothonotary’s Office prior to the
court’s entry of summary judgment, the record does not support this claim.
The first and only indication on the docket that Appellant attempted to remove
this matter to federal court is the memorandum filed by the district court
remanding the matter to state court on July 6, 2018. Furthermore, in its
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memorandum, the district court states that Appellant filed his petition to
remove the instant matter on May 23, 2018, which is one day after the trial
court entered summary judgment. (See District Court Memorandum, filed
July 6, 2018, at 1). As the record does not demonstrate that Appellant filed
the removal petition in federal court or filed a copy of the removal petition
with the state court prior to the entry of summary judgment, we see no
jurisdictional impediment to the trial court’s entry of summary judgment on
May 22, 2018. See Crown Const. Co., supra. Accordingly, Appellant’s
seventh and eighth issues lack merit, and we affirm the trial court’s order
denying Appellant’s petition to open judgment.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2022
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3 On November 22, 2021, Appellant filed an application for relief requesting
that this Court decline to dismiss the instant appeal due to deficiencies in
Appellant’s brief. Based on our disposition, we deny Appellant’s application
for relief as moot.
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