J-S05043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GUY MARTIN, GAIL ANN MARTIN 

AND TANYA L. MARTIN A/K/A TANYA 

LEE MARTIN-KIRKUTIS 

Appellants

v.

BANK OF AMERICA, BANK OF 

AMERICA BORROWERS PROTECTION 

PLAN, AND POWER, KIRN & 

JAVARDIAN, LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 883 MDA 2021

Appeal from the Order Entered June 21, 2021

In the Court of Common Pleas of Luzerne County Civil Division at No(s): 

2014-6257

BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED: APRIL 26, 2022

Appellants, Guy Martin (“Mr. Martin”), Gail Ann Martin, and Tanya L. 

Martin a/k/a Tanya Lee Martin-Kirkutis, appeal from the June 21, 2021 Order 

denying Appellants’ Motion to Reinstate Case and dismissing Appellants’ 

Complaint with prejudice in this action alleging that Appellees, Bank of 

America, Bank of America Borrowers’ Protection Plan, and Power, Kirn & 

Javardian, LLC, engaged in fraud and misrepresentation and violated the 

Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa.C.S. 

§ 201-1 et seq. After careful review, we affirm.

While the facts of this matter are largely immaterial to our disposition, 

the relevant procedural history is as follows. On May 19, 2014, Appellants 
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initiated this action by filing a Writ of Summons. In March 2014, and July 

2015, Appellants filed Praecipe to Re-Issue Writ of Summons.

No further docket activity occurred until the trial court issued a Notice 

of Termination of Court Case. This prompted Appellant to file, on October 16, 

2016, a Statement of Intention to Proceed. As a result of the docket inactivity, 

the Luzerne County Court Administrator placed this case on a list of inactive 

cases for which status conferences were required.

On December 22, 2016, the court entered an Order scheduling a status 

conference for January 12, 2017. The lower court docket does not reflect 

entry of Pa.R.C.P. 236 Notice of the Order. 

At the January 12, 2017 status conference, counsel for Appellees

appeared. Counsel for Appellants, however, failed to appear. Thus, the court 

dismissed the case with prejudice pursuant to Pa.R.J.A. 1901 and Pa.R.C.P. 

230.2.1 The docket reflects that, on January 20, 2017, the court clerk mailed 

a copy of the Order to all parties and counsel of record pursuant to Rule 236.2 

____________________________________________

1 Pa.R.J.A. 1901 provides an administrative mechanism empowering the 

courts of common pleas to cull from their dockets cases that have fallen 

dormant and that have remained inactive for an unreasonable period of time. 

See Pa.R.J.A. 1901(a). It reflects the general policy of this Commonwealth 

to promote the prompt completion of litigation. Golab v. Knuth, 176 A.3d 

335, 340 (Pa. Super. 2017). Pa.R.C.P. 230.2 provides the procedure for 

implementing the policy set forth in Pa.R.J.A. 1901(a). See Pa.R.J.A. 

1901(b)(3).

2 Appellants deny having received notice of the court’s Order dismissing the 

case but concede a Rule 236 Notice appears on the docket. Appellants’ Brief 

at 13.
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Appellants did not file an appeal or seek reconsideration of the Order and did 

not file a petition to reinstate the case.

Instead, on February 1, 2018, Appellants filed a Complaint raising the 

above claims. On April 5, 2018, Appellants filed a Praecipe to Reinstate 

Complaint.

On May 25, 2018, Appellees filed Preliminary Objections pursuant to 

Pa.R.C.P. 1028(a)(2), (3), and (4) because the court had previously dismissed 

the case with prejudice. The Luzerne County Court Administrator did not 

assign this matter to a judge until almost one year later, in April 2019.

On April 17, 2019, the trial court sustained Appellees’ Preliminary 

Objections and struck the Complaint as improper pursuant to Rule 1028(a)(2). 

Relevantly, the trial court concluded that Appellants could not proceed with 

litigation until they first reinstated the action. See Trial Ct. Op., 8/30/19, at 

6-7. Appellants appealed this Order and, on May 26, 2020, this Court 

affirmed. See Martin v. Bank of Am., 834 MDA 2019, 2020 WL 2735562

(Pa. Super. filed May 26, 2020) (unpublished memorandum). In affirming the 

trial court’s order, this Court agreed with the trial court that Pa.R.J.A. 1901 

and Pa.R.C.P. 230.2 required Appellants to seek leave to reinstate the action 

before proceeding further by filing a complaint. See id. at *2. 

While Appellants’ appeal was pending, on April 22, 2019, Appellants filed 

the instant Motion to Reinstate Case (“Motion to Reinstate”). In the Motion, 

Appellants asserted that: (1) they had properly filed a Statement of Intention 

to Proceed; (2) they did not receive a copy of the court’s December 22, 2016 
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Order scheduling a status conference; (3) the docket shows that the Order 

was not compliant with Rule 236; (4) they appeared in court for numerous 

other matters on the same day of the status conference in this case and 

remained unaware that this matter was scheduled to be heard that day; (5) 

not all of the Appellees were represented at the status conference, which 

further evidences lack of notice of the conference; (6) this case was not 

included on the list of matters scheduled for hearing on January 17, 2017 

provided to Appellants’ counsel by the court’s clerk on the day in question; 

and (7) no party would be prejudiced by reinstatement of the case. 

Importantly, Appellants did not provide any explanation for their decision to 

file a Complaint instead of petitioning the court to reinstate this matter or for 

their delay of more than two years in filing the instant Motion to Reinstate 

Case.

On May 13, 2019, Appellees filed a response to the Motion to Reinstate. 

On May 21, 2019, the trial court stayed Appellants’ Motion to Reinstate 

pending appeal.

Following our disposition of Appellants’ appeal, on August 10, 2020, 

Appellees filed a Motion to Lift Stay. Appellants did not file an answer. On 

December 18, 2020, the trial court held a hearing on the Motion to Lift Stay 

and Appellants’ Motion to Reinstate. On June 21, 2021, the court granted 

Appellees’ Motion to Lift Stay and denied Appellants’ Motion to Reinstate.

This timely appeal followed. Both Appellants and the trial court have 

complied with Pa.R.A.P. 1925.
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Appellants raise the following issue on appeal:

Whether the trial court erred an/or abused its discretion in 

denying [Appellants’] Motion to Reinstate Case when [Appellants] 

were never notified of the status conference and since no hearing 

was ever held on the matter as required by law, and since there 

was only 21 days between the alleged notice and the termination 

status conference[?]

Appellants’ Brief at 3.

Appellants first argue that the failure of the trial court to provide Rule 

236 Notice of the January 12, 2017 status conference rendered all subsequent 

action in the case a legal nullity. Id. at 12-14. They conclude, therefore, that 

the trial court abused its discretion in denying their Petition to Reinstate Case. 

Appellants do not dispute, however, that they had notice of the court’s January 

20, 2017 order terminating the case and that they did not seek reinstatement 

for more than two years. Id.

We begin by noting that “[t]he question of whether an action has been 

properly terminated pursuant to Pa.R.J.A. 1901, or its local rule counterpart, 

rests within the discretion of the trial court and will not be disturbed absent 

an abuse of that discretion or an error of law.” Tucker v. Ellwood Quality 

Steels Co., 802 A.2d 663, 664 (Pa. Super. 2002) (citations omitted). “An 

abuse of discretion may not be found merely because an appellate court might 

have reached a different conclusion, but requires a manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of 

support so as to be clearly erroneous.” Dibish v. Ameriprise Fin., Inc., 134 

A.3d 1079, 1095 (Pa. Super. 2016) (citation omitted).
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Pa.R.C.P. 230.2, Termination of Inactive Cases, provides, in relevant 

part, as follows:

(d)(1) If an action has been terminated pursuant to this rule, an 

aggrieved party may petition the court to reinstate the action.

 (2) If the petition is filed within sixty days after the entry of the 

order of termination on the docket, the court shall grant the 

petition and reinstate the action.

 (3) If the petition is filed more than sixty days after the entry 

of the order of termination on the docket, the court shall grant the 

petition and reinstate the action upon a showing that 

(i) the petition was timely filed following the entry of the 

order for termination and

(ii) there is a reasonable explanation or a legitimate excuse 

for the failure to file both 

(A) the statement of intention to proceed prior to the 

entry of the order of termination on the docket and,

(B) the petition to reinstate the action within sixty days 

after the entry of the order of termination on the 

docket.

Pa.R.C.P. 230.2(d)(1)-(3).

Critically, the rule provides that, if the aggrieved party files a petition to 

reinstate the action more than 60 days after the court terminates it, the 

petitioner must show, among other things, that he has a reasonable 

explanation or a legitimate excuse for the failure to file the timely file the 

petition to reinstate the action. Id. at (d)(3)(ii)(B).

The trial court explained that it denied Appellant’s Motion to Reinstate 

because Appellants filed the motion more than 60 days after the court 

dismissed the case with prejudice and Appellants failed to offer a reasonable 
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explanation or legitimate excuse for the delay. Trial Ct. Op., 8/23/21, at 7. 

Our review of the record confirms that Appellants waited more than two years 

after the court terminated this case to file the Motion to Reinstate. In addition, 

in the motion, Appellants proffered no explanation, reasonable or otherwise, 

why they failed to file the motion to reinstate the case within 60 days after 

the court docketed the order terminating it. Thus, they did not satisfy the 

requirements for reinstatement set forth in Rule 230.2(d) and the trial court 

did not abuse its discretion in denying Appellants’ Motion to Reinstate. 

Appellants are, therefore, not entitled to relief.3, 4

Order affirmed.

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3 Appellants have also asserted that “[n]either Pa.R.C.P. 230.2 or Pa.R.J.A. 

permit the action taken by the trial court,” see Appellants’ Brief at 14-18, and 

that “Pa.R.C.P. 230.2 does not require an appeal for a petition for 

reinstatement beyond 30 days as stated by the trial court,” see id. at 18-21. 

Appellants have not, however, supported these assertions with citation to any 

controlling authority in violation of Pa.R.A.P. 2119 (requiring an appellant’s 

argument to be supported with “discussion and citation of authorities as are 

deemed pertinent.”). We, therefore, decline to address them. 

4

In their final argument, Appellants assert that the case law relied upon by 

the trial court is inapplicable to the instant case. Appellants’ Brief at 21-22. 

Appellants did not include this issue in their Statement of Questions Involved 

and it is not fairly suggested thereby; thus, it is waived. See Pa.R.A.P. 2116 

(“No question will be considered unless it is stated in the statement of 

questions involved or is fairly suggested thereby.”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/26/2022