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Nicholson v. Jablonski

Superior Court of Pennsylvania

May 19, 2017

DAVID R. NICHOLSON, BUILDER, LLC Appellant
v.
ERIN L. JABLONSKI AND BRANDON M. VOGEL, HUSBAND AND WIFE Appellees

         Appeal from the Order Entered August 29, 2016 In the Court of Common Pleas of Union County Civil Division at No(s): 16-0109

          BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E. [*]

          OPINION

          GANTMAN, P.J.

         Appellant, David R. Nicholson, Builder, LLC, appeals from the order entered in the Union County Court of Common Pleas, which sustained the preliminary objections of Appellees, Erin L. Jablonski and Brandon M. Vogel, struck Appellant's de novo appeal, and dismissed as untimely Appellant's complaint for breach of contract. We affirm.

         The relevant facts and procedural history of this case are as follows. Appellant is a single-member limited liability company ("LLC"). David R. Nicholson, a non-attorney, is the sole member of Appellant. In November 2011, the parties entered into an agreement for Appellees to pay Appellant, in two installments, an outstanding balance for services Appellant had provided Appellees. On November 24, 2015, Mr. Nicholson filed a pro se complaint on behalf of Appellant before a Magisterial District Judge ("MDJ") against Appellees for Appellees' alleged failure to perform under the agreement. The MDJ entered judgment in favor of Appellees on February 3, 2016.

         On February 26, 2016, Mr. Nicholson filed a pro se appeal on behalf of Appellant in the Union County Court of Common Pleas and a pro se complaint. Appellees filed preliminary objections on March 17, 2016. In their preliminary objections, Appellees averred: (1) Mr. Nicholson could not appear in the court of common pleas on behalf of Appellant because he is not an attorney; and (2) the court did not have jurisdiction over the appeal because Mr. Nicholson's pro se filings in the court of common pleas were legal nullities. On April 4, 2016, Appellant filed a counseled complaint. Appellees filed preliminary objections to Appellant's counseled complaint. In their second set of preliminary objections, Appellees restated the averments in their initial preliminary objections and claimed Appellant's counseled complaint was out of time.

         Following a hearing, the court sustained Appellees' preliminary objections on August 29, 2016, struck Appellant's appeal, and dismissed Appellant's complaint. Appellant filed a timely notice of appeal on September 28, 2016, and a voluntary concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).

         Appellant raises three issues for our review:

WHETHER THE TRIAL COURT ERRED IN [SUSTAINING] [APPELLEES]' PRELIMINARY OBJECTIONS, THUS HOLDING THAT A SINGLE-MEMBER [LLC] CANNOT REPRESENT ITSELF IN THE COURT OF COMMON PLEAS ON AN APPEAL FROM A MAGISTERIAL DISTRICT [COURT]'S RULING?
WHETHER THE TRIAL COURT ERRED IN [SUSTAINING] [APPELLEES]' PRELIMINARY OBJECTIONS, THUS HOLDING THAT THE FILING OF A NOTICE OF APPEAL FROM [A MAGISTERIAL DISTRICT COURT] JUDGMENT CONSTITUTES PROHIBITED SINGLE-MEMBER LLC SELF-REPRESENTATION IN THE COURT OF COMMON PLEAS AND, THEREFORE, MUST BE STRICKEN?
WHETHER THE TRIAL COURT ERRED IN [SUSTAINING] [APPELLEES]' PRELIMINARY OBJECTIONS, THUS HOLDING THAT A COMPLAINT FILED BY THE SOLE MEMBER OF A SINGLE-MEMBER LLC CANNOT BE CURED BY THE FILING OF A COUNSELED AMENDED COMPLAINT?

(Appellant's Brief at 4).

         Our scope and standard of review in examining a challenge to an order sustaining preliminary objections are as follows:

In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. Clemleddy Constr., Inc. v. Yorston, 810 A.2d 693 (Pa.Super. 2002)[, appeal denied, 573 Pa. 682, 823 A.2d 143 (2003)]. When sustaining the trial court's ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt, and this Court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion. Id.

Rambo v. Greene, 906 A.2d 1232, 1235 (Pa.Super. 2006).

         In its first and second issues combined, Appellant argues Mr. Nicholson did not engage in the practice of law when he prepared and filed the pro se appeal and complaint in the court of common pleas on behalf of Appellant. Appellant submits Mr. Nicholson properly filed the appeal because he is Appellant's sole agent. Appellant avers Mr. Nicholson should have been allowed to represent Appellant in the court of common pleas. Appellant concludes this Court should vacate the court's order striking the de novo appeal and dismissing the complaint, reinstate Appellant's appeal to the court of common pleas, and remand for further proceedings on Appellant's complaint. We disagree.

         Corporations may appear and be represented in Pennsylvania courts only by an attorney at law "duly admitted to practice." Walacavage v. Excell 2000, Inc., 480 A.2d 281, 284 (Pa.Super. 1984) (stating: "The federal courts and the courts of our sister states have consistently held that a corporation may appear in court only through an attorney at law admitted to practice before the court"). See also Shortz v. Farrell, 327 Pa. 81, 90, 193 A. 20, 24 (1937) (stating: "In the case of a corporate party…there can be no legal representation at all except by counsel, because a corporation cannot appear in propria persona. … Were it otherwise, a corporation could employ any person, not learned in the law, to represent it in any or all judicial proceedings") (internal citations omitted). Some jurisdictions allow for exceptions to the general rule governing counseled representation of corporations, for "special small claims courts with informal rules of procedure in which corporate as well as individual litigants are permitted or even required to appear without an attorney" and for "stockholder's derivative actions." Walacavage, supra at 284. See also Pa.R.P.C.M.D.J. 207(A)(3) (stating: "In magisterial district court proceedings: …Corporations or similar entities…may be represented by an attorney at law, by an officer of the corporation, entity, or association, or by an employee or authorized agent of the corporation, entity, or association with personal knowledge of the subject matter of the litigation and written authorization from an officer of the corporation, entity, or association to appear as its representative").[1]

         "The reasoning behind the general rule governing counseled representation of corporations is…a corporation can do no act except through its agents and…such agents representing the corporation in [c]ourt must be attorneys at law who have been admitted to practice, are officers of the court and subject to its control. This rule holds even if the corporation has only one shareholder." Walacavage, supra at 284 (internal citations omitted) (emphasis added). See also Advanced Telephone Systems, Inc. v. Com-Net Professional Mobile Radio, LLC, 846 A.2d 1264, 1278 (Pa.Super. 2004), appeal denied, 580 Pa. 687, 859 A.2d 767 (2004) (stating: "The general rule is that a corporation shall be regarded as an independent entity even if its stock is owned entirely by one person"). The purpose of the rule requiring corporations to appear in court through counsel "[i]s not the protection of stockholders but the protection of the courts and the administration of justice, and that a ...


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