J-A21007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 

____________________________________________

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 

____________________________________________

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). 

____________________________________________

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