J-A07030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 834 MDA 2019

Appeal from the Order Entered April 18, 2019

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

2014-6257

BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY DUBOW, J.: FILED: MAY 26, 2020

Appellants, Guy Martin, Gail Ann Martin, and Tanya Lee Martin a/k/a 

Tanya Lee Martin-Kirkutis, purport to appeal from the Order entered April 18, 

2019 (“Preliminary Objections Order”), which sustained in part Preliminary 

Objections filed by Bank of America and its Co-Defendants (collectively, 

“Appellees”). In that Order, the trial court struck Appellants’ Complaint as 

improper, pursuant to Pa.R.C.P. 1028(a)(2), because the court had previously 

dismissed this matter with prejudice. We discern neither legal error nor abuse 

of discretion in the trial court’s decision. Thus, we affirm.
J-A07030-20

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In May 2014, Appellants commenced litigation against Appellees by Writ 

of Summons.1In December 2016, the trial court scheduled a status 

conference and indicated that failure to attend the conference could result in 

dismissal of Appellants’ case. Appellants failed to appear at the conference. 

In January 2017, the trial court dismissed the case with prejudice due 

to inactivity. Trial Ct. Order, 1/20/17 (“Dismissal Order”). The Luzerne 

County Prothonotary notified all parties of the court’s decision pursuant to 

Pa.R.C.P. 236. Appellants did not appeal from the Dismissal Order.

In February 2018, Appellants filed a Complaint. Appellees filed 

Preliminary Objections, in relevant part asserting that the Complaint should 

be stricken because the trial court had dismissed this action previously with 

prejudice and because Appellants had taken no steps to reinstate it. 

Preliminary Objections, 5/25/18, at 4-5. In their response, Appellants denied 

any knowledge of the prior dismissal. See Answer, 8/12/18, at 6-8.

In April 2019, the court sustained in part Appellants’ Preliminary 

Objections, striking the Complaint as improper. See Preliminary Objections 

Order, 4/18/19, at 1 (citing Pa.R.A.P. 1028(a)(2)).

2

 

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1 A cover sheet generated at the time Appellants commenced this litigation 

indicates that Appellants intended to pursue claims asserting breach of 

fiduciary obligations. See Docket Cover Sheet, 5/19/14.

2 The court also overruled other objections as moot. See id.
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Appellants timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

Statement.

3

 The trial court issued a responsive Opinion.

Appellants raise the following issue:

W[hether] the [t]rial [c]ourt should permit Appellants to refile an 

Amended Complaint at the conclusion of the hearing on the Motion 

to Reinstate Case and, as a result, the current order of April [18], 

2019 should be amended to hold the matter in abeyance pending 

the results of the pending motion and hearing on the said Motion 

to Reinstate Case Terminated Pursuant to Pa.R.J.A. 1901.

Appellants’ Br. at 3 (internal footnote omitted).

We will not reverse a trial court’s decision to sustain preliminary 

objections absent legal error or an abuse of discretion. Kirschner v. K & L 

Gates LLP, 46 A.3d 737, 748 (Pa. Super. 2012). Where the decision of the 

trial court will result in the denial of a claim, we will affirm the trial court only 

in cases free and clear of doubt. Cooper v. Frankford Health Care Sys., 

Inc., 960 A.2d 134, 144 (Pa. Super. 2008).

In this case, the trial court determined that Appellants filed a Complaint 

more than a year after the court had dismissed this case with prejudice. See

Trial Ct. Op., 8/30/19, at 2, 6-7. According to the trial court, Appellants could 

not proceed with litigation until they first reinstated this action. See id. at 6-

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3 After the issuance of the Preliminary Objections Order, and more than two 

years after the trial court had terminated this case administratively, Appellants 

sought to reinstate it. Motion to Reinstate Case, 4/22/19. The trial court 

scheduled a hearing but thereafter stayed further action on Appellant’s Motion 

pending resolution of this appeal. See Trial Ct. Order, 5/23/19.
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7. We agree—Appellants must seek leave to reinstate this action before 

proceeding further. See Pa.R.J.A. 1901;

4 Pa.R.C.P. 230.2. Therefore, we 

discern no legal error or abuse of the trial court’s discretion in striking 

Appellants’ Complaint as improper. Kirschner, 46 A.3d at 748; Pa.R.C.P. 

1028(a)(2). 

Appellants’ arguments in their brief are limited to challenges to the 

Dismissal Order. See Appellants’ Br. at 11-15.

5 For example, Appellants 

dispute the trial court’s finding that they failed to prosecute their claims. Id.

at 12. They assert that the court failed to provide adequate notice of a status 

conference and denied them an opportunity to participate in a hearing prior 

to dismissal. Id. at 13. They suggest Appellees suffered no prejudice from 

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4 The trial court dismissed this case pursuant to Pennsylvania Rule of Judicial 

Administration 1901, which provides an administrative mechanism 

empowering our courts of common pleas to cull from their dockets those 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. See Golab 

v. Knuth, 176 A.3d 335, 340 (Pa. Super. 2017). 

5 Appellants do not challenge the legal merits of the Preliminary Objections 

Order. See generally Appellants’ Br. Instead, Appellants argue, in a single 

paragraph, that the trial court should have delayed its decision and granted 

Appellants leave to amend their Complaint. Id. at 16 (noting this 

Commonwealth’s liberal policy permitting amendments to pleadings). 

Although Appellants made a similar argument in a Motion to Reconsider, filed 

5/17/19, Appellants filed this Motion at the same time as their Notice of 

Appeal, thus affording the trial court no opportunity to consider its merits. We 

therefore conclude that Appellants have waived this argument. Pa.R.A.P. 

302(a) (“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.”).
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any delay in this litigation. Id. at 13-14. Finally, according to Appellant, they 

never received notice of the Dismissal Order. Id. at 14-15.6

These arguments are not appropriate in this appeal. Rather, Appellants 

must direct these arguments first to the trial court in a motion to reinstate 

their action. See supra note 3; Pa.R.A.P. 302(a). Thus, we decline to address 

them herein.7

Order affirmed; Application to Strike denied as moot.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/26/2020

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6 Notwithstanding Appellants’ assertion, we note that the docket for this 

matter indicates that the Luzerne County Prothonotary forwarded the 

Dismissal Order pursuant to Pa.R.C.P. 236. There is no indication that this 

notice was returned as undeliverable. 

7 Appellees have filed an Application to Strike portions of Appellants’ 

Reproduced Record. See Application to Strike, 12/16/19. In light of 

disposition, we deny the Application as moot.