Com. v. Auric Investment Holdings, LLC ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AURIC INVESTMENT HOLDINGS, LLC :
:
Appellant : No. 1998 MDA 2019
Appeal from the Judgment of Sentence Entered November 15, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-SA-0000081-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
CONCURRING MEMORANDUM BY COLINS, J.: FILED JANUARY 26, 2021
I agree with the learned dissent’s conclusion that the majority correctly
determined that the Court of Common Pleas lacked jurisdiction to consider
Appellant Auric Investment Holdings, LLC’s de novo appeal from its summary
conviction because Appellant, a limited liability company (“LLC”), did not
appear through an attorney in the lower court. However, I depart from the
dissent as I do not believe that the majority exceeded its authority by
resolving this appeal instead of transferring it to the Commonwealth Court,
where appellate jurisdiction properly lies.1 Therefore, I join the memorandum
decision of the majority in full.
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* Retired Senior Judge assigned to the Superior Court.
1See 42 Pa.C.S. § 762(a)(4)(i)(B) (”[T]he Commonwealth Court shall have
exclusive jurisdiction of appeals from final orders of the courts of common
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In Mohn v. Bucks County Republican Committee, 218 A.3d 927 (Pa.
Super. 2019) (en banc), this Court explained:
Ordinarily, Rule [of Appellate Procedure] 741 allows this Court to
accept jurisdiction of an appeal that belongs in another appellate
court when the parties do not object.[2] However, even where no
party objects to this Court’s exercise of appellate jurisdiction . . .,
we still have discretion under rule 741 to transfer the matter to
the Commonwealth Court. Indeed, we should transfer the appeal
where the interests of the parties and matters of judicial economy
are outweighed by other factors, such as whether our retention
will disrupt the legislatively ordained division of labor between the
intermediate appellate courts; or whether there is a possibility of
establishing two conflicting lines of authority on a particular
subject.
We now hold that, in deciding whether this Court has appellate
jurisdiction, we must consider all of the potential issues underlying
the parties’ theories of the case. If any potential substantive issue
(or participation of a particular party) invokes the Commonwealth
Court’s jurisdiction, transfer is appropriate, and we must transfer
prior to reaching the merits of the appeal.
Id. at 934 (internal citations omitted; emphasis in original).
In Mohn, the appeal concerned whether the Bucks County Republican
Party acted within its authority under the Election Code in removing a
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pleas in . . . [a]ll actions or proceedings . . . [involving] the application,
interpretation or enforcement of any . . . local ordinance or resolution[.]”).
2 Rule of Appellate Procedure 741(a) provides:
(a) General rule. The failure of an appellee to file an objection to the
jurisdiction of an appellate court on or prior to the last day under these
rules for the filing of the record shall, unless the appellate court shall
otherwise order, operate to perfect the appellate jurisdiction of such
appellate court, notwithstanding any provision of law vesting jurisdiction
of such appeal in another appellate court.
Pa.R.A.P. 741(a).
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committeeperson for violation of the local party rules, which fell within the
Commonwealth Court’s exclusive jurisdiction over appeals concerning “the
application, interpretation or enforcement of . . . statute[s] relating to
elections, . . . or other election procedures.” Id. at 929-30, 934-35 (quoting
42 Pa.C.S. § 762(a)(4)(i)(C)). As “the subject matter of th[e] appeal directly
implicate[d] the Election Code and the Commonwealth Court’s precedents
applying the Code’s provisions,” we therefore transferred the matter to
Commonwealth Court. Id. at 935.
Here, by contrast, the jurisdictional rule that underlies the majority’s
disposition of this appeal is not derived from a statute within the exclusive
purview of the Commonwealth Court, but rather it is a common law rule that
applies broadly across courts of the Commonwealth. See Walacavage v.
Excell 2000, Inc., 480 A.2d 281, 284-85 (Pa. Super. 1984). Moreover, there
is no material divergence between the application of that rule in
Commonwealth Court as compared to this Court. See, e.g., Skotnicki v.
Insurance Department, 146 A.3d 271, 284 (Pa. Cmwlth. 2016), aff’d on
other grounds, 175 A.3d 239 (Pa. 2017) (citing Walacavage and observing
that corporations may not appear in court in Pennsylvania through a non-
attorney, while recognizing an exception to this rule in some administrative
proceedings); Spirit of the Avenger Ministries v. Commonwealth, 767
A.2d 1130, 1130-31 (Pa. Cmwlth. 2001) (quashing appeal brought by church
pastor because he was not an attorney and thus could not represent his
church, a non-profit association, in appeal); see also Martin v. Zoning
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Hearing Board of West Vincent Township, 230 A.3d 540, 544 (Pa.
Cmwlth. 2020) (where the lower court lacks jurisdiction, the appellate court
is also without jurisdiction to hear the appeal); Selig v. Zoning Hearing
Board of North Whitehall Township, No. 180 C.D. 2014, 2014 WL
3586255, at *1-*2 (Pa. Cmwlth. filed July 22, 2014) (affirming trial court
dismissal of appeal where non-attorney appeared on behalf of LLC, concluding
that the rule prohibiting corporations from appearing through a non-attorney
applied equally to LLCs and even where the litigant is the sole-owner of the
LLC).3 Therefore, “our retention [of this appeal does not] disrupt the
legislatively ordained division of labor between the intermediate appellate
courts” and does not create the “possibility of establishing two conflicting lines
of authority on a particular subject.” Id. at 934.
Accordingly, in the narrow circumstances presented here, I believe that
Mohn permits our disposition of this appeal on jurisdictional grounds instead
of transferring the matter to Commonwealth Court.
Judge Dubow joins this concurring memorandum.
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3 While not binding precedent, this unreported panel decision may be cited for
its persuasive value. See Pa.R.A.P. 126(b) (non-precedential Commonwealth
Court decisions filed after January 15, 2008 may be cited for their persuasive
value).
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