J-A08001-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HIREN PATEL, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SHARON K. SMITH AND NICOLE 

JOHNSON,

Appellees No. 1244 EDA 2015

Appeal from the Order Entered March 31, 2015

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2011-08715

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 22, 2016

Hiren Patel appeals from the March 31, 2015 order granting summary 

judgment and dismissing this action because it was instituted after 

expiration of the applicable statute of limitations. We affirm. 

Appellant was the owner of various Subway franchises in southeastern 

Pennsylvania. On October 3, 2011, Appellant commenced this lawsuit 

against Appellees, Subway franchise owners Sharon K. Smith and Nicole 

Johnson, by filing a written complaint in the Court of Common Pleas of Bucks 
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County.1 Appellant contended that, as a result of misrepresentations by 

Appellees and transactions that he conducted with them in 2008, he was 

misled into making certain investments within the Subway franchise 

organization and was damaged thereby. He asserted fraud, conversion and 

tortious interference with business relations. 

Before the instant lawsuit was filed, Appellant had commenced an 

earlier federal action in the United States District Court for the Eastern 

District of Pennsylvania (“federal court”) on August 18, 2010, against 

Appellees. The federal action included the following claims for relief: 1) 

conversion; 2) fraud; 3) civil conspiracy; 4) tortious interference with 

business relations; 5) restraint of trade; 6) federal civil racketeering; and 7) 

securities fraud. On October 15, 2010, Appellees moved to dismiss the 

federal lawsuit for lack of jurisdiction and for failure to state a claim. On July 

11, 2011, the motion was granted, but the dismissal was without prejudice 

and Appellant was granted leave to file an amended complaint to sustain 

federal jurisdiction. No amended pleading was filed; instead, Appellant 

commenced the lawsuit on October 3, 2011, by filing a new complaint. 

Appended to the complaint herein was an uncertified copy of docket entries 

in the federal case.

____________________________________________

1

 Appellees obtained the removal of this action to the federal court, and 

Appellant thereafter successfully asked the federal court to remand this 

lawsuit back to the court of common pleas. 
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Appellees moved for summary judgment on the ground that the 

causes of action pled in the case at issue, fraud, conversion, and tortious 

interference with business relations, were barred by the applicable statute of 

limitations.2 They noted that Appellant’s claims arose from activities 

conducted from May to September 2008, and the tort causes of action were 

subject to a two-year statute, yet Appellant did not file this case until 

October 3, 2011. 

In opposition to the summary judgment motion based upon the 

statute-of-limitations defense, Appellant argued that the filing date of the 

federal case, which he averred was commenced within the applicable 

limitations period, should control the issue. The trial court determined that 

Appellant had not complied with the requirements of the transfer statute, 

and granted summary judgment to Appellees. This appeal followed. 

Appellant presents one question for our review: “Did the lower court 

commit legal error and/or abuse its discretion, by having granted summary 

judgment in favor of [Appellees] as to all claims in the case asserted by 

[Appellant], on the basis that all of [Appellant’s] claims were time-barred?” 

Appellant’s brief at 2. Appellant’s specific averment is that he “properly 

____________________________________________

2

 The averments in the motion for summary judgment dispel Appellant’s 

position that the statute of limitations question was raised by the trial court 

sua sponte. Appellant’s brief at 10. Appellant relied upon the transfer 

statute in an attempt to save this case from being dismissed as untimely. 
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transferred his case to Bucks County from the Federal Court . . . after the 

Federal Court had dismissed his federal causes of action.” Appellant’s brief 

at 10. Appellant contends that this action should be considered as filed on 

August 8, 2010, when Appellant instituted the federal lawsuit, and the use of 

that date renders this case timely with regard to the statute of limitations. 

Our scope and standard of review when a trial court grants summary 

judgment is as follows: 

[S]ummary judgment is appropriate only in those cases where 

the record clearly demonstrates that there is no genuine issue 

of material fact and that the moving party is entitled to 

judgment as a matter of law. When considering a motion for 

summary judgment, the trial court must take all facts of record 

and reasonable inferences therefrom in a light most favorable to 

the non-moving party. . . . [A]n appellate court may reverse a 

grant of summary judgment if there has been an error of law or 

an abuse of discretion.

Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015) (citations omitted). 

If the statute of limitations has expired when a case was commenced, then 

the trial court is considered to have properly granted summary judgment. 

Chris Falcone, Inc. v. Insurance Co. of State of Pennsylvania, 907 

A.2d 631 (Pa.Super. 2006). 

Section 5103 of title 42 governs when a Pennsylvania action will be 

considered filed as of the date of a previously-initiated federal action:

(a) General rule.-If an appeal or other matter is taken to or 

brought in a court or magisterial district of this Commonwealth 

which does not have jurisdiction of the appeal or other matter, 

the court or magisterial district judge shall not quash such 

appeal or dismiss the matter, but shall transfer the record 
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thereof to the proper tribunal of this Commonwealth, in a court 

or magisterial district where the appeal or other matter shall 

be treated as if originally filed in the transferee tribunal 

on the date when the appeal or other matter was first 

filed of this Commonwealth. A matter which is within the 

exclusive jurisdiction of a court or magisterial district judge of 

this Commonwealth but which is commenced in any other 

tribunal of this Commonwealth shall be transferred by the other 

tribunal to the proper court or magisterial district of this 

Commonwealth where it shall be treated as if originally filed in 

the transferee court or magisterial district of this Commonwealth 

on the date when first filed in the other tribunal.

(b) Federal cases.-

(1) Subsection (a) shall also apply to any matter 

transferred or remanded by any United States court for a 

district embracing any part of this Commonwealth. In order to 

preserve a claim under Chapter 55 (relating to limitation of 

time), a litigant who timely commences an action or proceeding 

in any United States court for a district embracing any part of 

this Commonwealth is not required to commence a protective 

action in a court or before a magisterial district judge of this 

Commonwealth. Where a matter is filed in any United 

States court for a district embracing any part of this 

Commonwealth and the matter is dismissed by the United 

States court for lack of jurisdiction, any litigant in the 

matter filed may transfer the matter to a court or 

magisterial district of this Commonwealth by complying 

with the transfer provisions set forth in paragraph (2).

(2) Except as otherwise prescribed by general rules, or by order 

of the United States court, such transfer may be effected by 

filing a certified transcript of the final judgment of the 

United States court and the related pleadings in a court or 

magisterial district of this Commonwealth. The pleadings 

shall have the same effect as under the practice in the United 

States court, but the transferee court or magisterial district 

judge may require that they be amended to conform to the 

practice in this Commonwealth. Section 5535(a)(2)(i) (relating 

to termination of prior matter) shall not be applicable to a matter 

transferred under this subsection.
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42 Pa.C.S. § 5103(a)-(b)(2) (emphases added). “The stated policy behind 

this section is to preserve a claim or cause of action timely filed in federal 

court on the ground that the claimant should not lose her opportunity to 

litigate the merits of the claim simply because she erred regarding federal 

jurisdiction.” Kelly v. Hazleton Gen. Hosp., 837 A.2d 490, 494 (Pa.Super. 

2003) (citation omitted).

In the present case, Appellant claims that he filed “copies of the 

certified documents which he had received from the Clerk of the District 

Court” with his October 3, 2011 complaint. Appellant’s brief at 11. Our 

review of the record reveals the following. The complaint had one 

attachment, and it is a copy of the docket sheet for the federal case. The 

docket sheet is not certified. Certified copies of the related pleadings, i.e., 

the complaint, presented in the federal lawsuit were not attached to the 

October 3, 2011 complaint, and a certified transcript of the final judgment of 

the United States court was not appended to the complaint. Indeed, when 

this case was commenced, the federal action had not proceeded to final 

judgment since it was dismissed without prejudice, and Appellant was given 

a chance to amend to sustain federal jurisdiction. Thus, it is clear that 

Appellant did not comply with § 5103. He instituted the present case on 

October 3, 2011, by filing a complaint, and appending thereto only an 

uncertified copy of the docket sheet of the federal proceeding. 
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In addition, the filing of a complaint to initiate this case, in and of 

itself, rather than the filing of a certified copy of the relevant federal 

pleadings, is fatal to Appellant’s position. “We have held that a litigant 

should file a certified transcript of the final judgment of the federal court and 

a certified transcript of the pleadings from the federal action, rather than 

new pleadings in the state court.” Chris Falcone, Inc., supra at 637. 

Simply put, the “litigant shall not file new pleadings in state court,” id. 

at 638 (emphasis in original), which is precisely what Appellant did herein. 

Appellant’s heavy reliance upon Williams v. F.L. Smithe Machine 

Co., Inc., 577 A.2d 907, 910 (Pa.Super. 1990), is misguided. In Williams, 

the question was whether the transfer had been promptly effectuated after 

the federal dismissal. Appellant herein never satisfied, at the onset, the 

mandate that he file a certified copy of the relevant federal pleadings and 

final judgment; instead, he fatally filed a completely new complaint. Indeed, 

Williams expressly admonished that 

in order to protect the timeliness of an action under 42 Pa.C.S.A. 

§ 5103, a litigant, upon having his case dismissed in federal 

court for lack of jurisdiction, must promptly file a certified 

transcript of the final judgment of the federal court and, at the 

same time, a certified transcript of the pleadings from the 

federal action. The litigant shall not file new pleadings in 

state court.

Id. at 910 (emphases added). 

The pertinent case authority compels our affirmance of the trial court’s 

decision. See Kelly, supra (finding that the plaintiff’s action was not saved 
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under § 5103 since plaintiff filed a new complaint to institute the state action 

and neglected to filed any relevant pleadings from the federal court); see 

also Ferrari v. Antonacci, 689 A.2d 320 (Pa.Super. 1997). Thus, the trial 

court did not abuse its discretion or commit an error of law in determining 

that Appellant did not comply with § 5103 and that the filing date for the 

federal litigation could not be used to compute whether Appellant brought 

this case within the applicable statute of limitations.

Appellant also argues that he should be given an opportunity to amend 

his complaint. This position overlooks the hard reality that his case is 

untimely. Appellant filed this action beyond the two-year period allowed 

under the applicable statute of limitations. Amending the complaint will not 

cure this defect. Appellant cannot utilize the filing date of the federal lawsuit 

to compute the statute of limitations in that he did not comply with § 5103. 

To the contrary, he violated controlling Pennsylvania authority by 

commencing this lawsuit through the filing of a new complaint. 

Order affirmed. 

Judge Olson joins the memorandum.

Judge Strassburger files a dissenting memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2016