J-A18013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R. MARTIN COMPANIES, INC. T/D/B/A IN THE SUPERIOR COURT OF
MARTIN CONSTRUCTION COMPANY PENNSYLVANIA
v.
MICHAEL T. FOSTER, MICHAEL T.
FOSTER, ERIKA J. KIRKPATRICK
APPEAL OF: MICHAEL T. FOSTER No. 1357 MDA 2015
Appeal from the Order Entered July 14, 2015
In the Court of Common Pleas of Berks County
Civil Division at No(s): 10-6048
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 13, 2016
Appellant, Michael T. Foster, appeals from the trial court’s July 14,
2015 order, dismissing with prejudice Appellant’s amended counterclaim and
joinder complaint due to Appellant’s failure to serve and failure to
prosecute.1 We affirm.
The trial court set forth the facts and procedural history of this case as
follows:
[Appellant], Michael Foster, filed a joinder complaint
against [Appellee], R. Martin Companies, Inc. and joinder
[Appellees], Raymond Martin, John Scully, David Martin, Daryl
Martin, Siber Boada, John/Jane Doe-1, and John/Jane Doe-2.
The attorney for the joinder [Appellees] entered a limited
appearance for the purpose of filing preliminary objections.
Except for [Appellee], the other additional [Appellees] never had
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1
This order was dated July 7, 2015, but was not docketed until July 14,
2015.
*Former Justice specially assigned to the Superior Court.
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service of process effectuated on them. On May 31, 2011,
additional [Appellees] filed preliminary objections on the ground
that [Appellant] had not served them in the manner required by
the Pennsylvania Rules of Civil Procedure.
On June 20, 2011, [Appellant] filed an amended joinder
complaint which did not address any of the additional
[Appellees’] preliminary objections; therefore, additional
[Appellees] again filed preliminary objections. On August 3,
2011, [Appellant] filed a combined document entitled Third
Amended Answer, New Matter and Counterclaim with the
Amended Joinder Complaint. This pleading again failed to
address any of the additional [Appellees’] objections and was
still not served on the additional [Appellees].
On September 14, 2011, [Appellant] filed a Fourth Answer,
New Matter and Counterclaim and Joinder Complaint which was
again not served on any of the additional [Appellees] and on
counsel of record for [Appellee].
Additional [Appellees] filed preliminary objections to this
pleading. Their attorney entered a limited appearance for the
purpose of objecting to the joinder. They asserted that the
joinder was improper because they were not served pursuant to
Pa. R.C.P. [] 2252 which mandates that a joining party file and
serve a complaint in the manner required of original process.
This was the fourth time that this objection was raised by the
additional [Appellees]. [Appellant] filed his document with the
Prothonotary without providing a copy to [Appellee’s] counsel, so
[Appellee] also was not served.
[Appellant’s] answer to the preliminary objections was that
there is neither a law nor a rule setting a time frame for service.
[Appellant] admitted in paragraph 4 of his answer that he did
not serve the parties. [Appellant] argued that the additional
[Appellees] wanted to run up costs by objecting to service
instead of just filing an answer.
This court scheduled argument on July 6, 2015 for
[Appellee’s] and the additional [Appellees’] preliminary
objections. This court issued its order on July 7, 2015, and it
was docketed on July 14, 2015. On August 3, 2015, [Appellant]
filed a motion for reconsideration which this court denied on
August 10, 2015, after the undersigned had returned from a one
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week vacation. The denial was docketed on August 12, 2015.
On August 3, 2015, [Appellant] also filed an amended motion for
reconsideration which this court denied on August 12, 2015. On
August 6, 2015, [Appellant] filed a Notice of Appeal while the
motions for reconsideration were still pending and this court was
on vacation out-of-state.
Trial Court Opinion (TCO), 9/25/15, at 1-3.
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal in accordance with Pa.R.A.P.
1925(b). However, Appellant did not comply with the requirements of Rule
1925(b), which sets forth that the statement “shall concisely identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.” See Pa.R.A.P. 1925(b)(4)(ii).
Further, it is well-established that “a Concise Statement which is too vague
to allow the court to identify the issues raised on appeal is the functional
equivalent to no Concise Statement at all. Even if the trial court correctly
guesses the issues [the] [a]ppellant raises on appeal and writes an opinion
pursuant to that supposition, the issue is still waived.” Commonwealth v.
Heggins, 809 A.2d 908, 911 (Pa. Super. 2002) (internal citations and
quotations omitted).
Here, the trial court explained:
This court directed [Appellant] to file a Concise Statement
of Errors Complained of on Appeal. [Appellant] filed a document
entitled ‘Rule 1925(B) Statement’ which states that the Order
dated July 7, 2015 and filed with the Prothonotary on July 14,
2015 contains ‘rulings and the errors complained of on appeal.’
The Statement has a section entitled ‘Sufficient Detail to Identify
Pertinent Issues.’
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[Appellant’s counsel] seems to believe that the
Pennsylvania Rules of Civil Procedure do not apply to him. Rule
204.1 mandates that the text be double spaced. [Appellant’s]
documents are single spaced. Rule 206.1(c) provides that a
petition must be divided into paragraphs numbered
consecutively and that each paragraph should contain, as far as
practicable, only one material allegation. [Appellant’s]
documents do not contain any numbered paragraphs. The
issues are jumbled together and are confusing[,] which this
court believes is done deliberately. All Pennsylvania attorneys
operate under the same time constraints and all the others can
follow the mandated rules. This court submits that [Appellant’s]
appeal should be dismissed because he failed to preserve
adequately any issues in these nonconforming and obfuscatory
documents.
TCO at 3-5. Given the vagueness of Appellant’s concise statement and the
trial court’s difficulty in gleaning which issues Appellant seeks to challenge
on appeal, this Court determines that Appellant has waived all issues set
forth therein. See Lineberger v. Wyeth, 894 A.2d 141, 143 (Pa. Super.
2006) (“We hold [the] [a]ppellant waived her issues on appeal, because her
court-ordered Rule 1925(b) concise statement of matters complained of on
appeal was vague and overly broad.”).
Nevertheless, even if Appellant had properly preserved the issues that
he challenges herein, this Court would affirm the trial court’s order
dismissing his counterclaim and joinder complaint due to Appellant’s failure
to serve and failure to prosecute. In his appellate brief, Appellant presents
four issues for our review:
A. Was it error for the lower court to have treated
[Appellant’s] “counterclaim,” and the [Appellant’s] claim
against third-parties, as though they were one and the
same?
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B. Was it error for the lower court to dismiss [Appellant’s]
“counterclaim” due to its not having been served, when, in
fact, not only had it been served but also it had been
formally answered?
C. Was it error for the lower court to dismiss [Appellant’s]
“joinder complaint,” due to its not having been served,
when, in fact, counsel had entered an appearance for all of
the “additional [Appellees]” and then was served under Pa.
R.C.P. 440?
D. When the hiatus was due to the automatic stay imposed by
bankruptcy law, and when the court acted solely sua
sponte and without taking any evidence, and when the
court did not schedule the matter for a hearing (nor even
for oral or written argument), was it error for the lower
court to dismiss a case for docket inactivity?
Appellant’s Brief at 4 (unnecessary capitalization and emphasis omitted).
To begin, we note that “[t]he question of whether an action has been
properly terminated. . . 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) (internal citations omitted).
Appellant first contends that the trial court erred in treating his
counterclaim and his claim against third parties “as though they were one
and the same.” Appellant’s Brief at 4. We disagree. In its opinion, the trial
court distinguishes between Appellant’s counterclaim and his claim against
third parties, explaining, “This court dismissed the underlying counterclaim
due to [Appellant’s] lack of prosecution in the case sub judice. [Appellant]
did not do anything concerning the outstanding problems addressed by the
preliminary objections. [Appellant] continued to file vague pleadings and did
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not effectuate service.” TCO at 7. The joinder complaint, in contrast, was
dismissed for lack of prosecution and lack of service where, “despite his
being on notice since 2011 and being reminded throughout four sets of
preliminary objections addressing the same issue of ineffective service,
[Appellant] still refused to serve the joinder complaint properly.” Id. at 6.
Therefore, we would conclude that the trial court did not err on this basis
because it did independently dispose of the counterclaim and joinder
complaint.
Second, Appellant claims that the trial court erred by dismissing his
counterclaim “due to its not having been served, when, in fact, not only had
it been served but also it had been formally answered[.]” Appellant’s Brief
at 4. However, as discussed supra, the trial court dismissed the
counterclaim on the basis of lack of prosecution by Appellant, not based on a
service error.2
Moreover, we see no error in the court’s decision that Appellant failed
to prosecute. Generally, “[w]here a matter has been inactive for an
unreasonable period of time, the tribunal, on its own motion, shall enter an
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2
Additionally, the trial court noted that “[o]n September 14, 2011,
[Appellant] filed a Fourth Answer, New Matter and Counterclaim and Joinder
Complaint which again was not served on any of the additional [Appellees]
and on counsel of record for [Appellee].” TCO at 2. Specifically,
“[Appellant] filed his document with the Prothonotary without providing a
copy to [Appellee’s] counsel, so [Appellee] also was not served.” Id. at 2.
Moreover, the trial court determined that the “counterclaim [was] vague and
alleges no real cause of action.” Id. at 6.
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appropriate order terminating the matter.” Pa.R.J.A. 1901(a). In order to
dismiss a case for inactivity, “there must first be a lack of due diligence on
the part of the plaintiff in failing to proceed with reasonable promptitude.
Second, the plaintiff must have no compelling reason for the delay. Finally,
the delay must cause actual prejudice to the defendant.” Shope v. Eagle,
710 A.2d 1104, 1107-08 (Pa. 1998) (internal citations omitted).
The trial court applied the three-part test stated above, to determine
that Appellant’s counterclaim should be dismissed for inactivity. The trial
court determined that Appellant did not act with due diligence in failing to
serve additional Appellees, Appellant proffered no compelling reason for the
delay in litigation, and Appellee had been prejudiced due to the protraction
of the litigation and the resulting increase in attorneys’ fees due to
Appellant’s filing of obscure pleadings and his refusal to serve the joinder
complaint. TCO at 8-9. As such, we would conclude that the trial court did
not err in dismissing Appellant’s counterclaim.
Third, Appellant argues that it was error for the lower court to dismiss
his joinder complaint, due to its not having been served, when counsel had
purportedly entered an appearance for all of the additional Appellees and
then was served under Pa.R.C.P. 440. See Appellant’s Brief at 4. We would
deem this claim meritless.
“A party may enter a written appearance which shall state an address
at which pleadings and other legal papers may be served…. Such
appearance shall not constitute a waiver of the right to raise any defense
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including questions of jurisdiction or venue.” Pa.R.C.P. 1012. Further, this
Court has explained, “A defendant manifests an intent to submit to the
court's jurisdiction when the defendant takes some action (beyond merely
entering a written appearance) going to the merits of the case, which
evidences an intent to forego objection to the defective service.” Fleehr v.
Mummert, 857 A.2d 683, 685 (Pa. Super. 2004) (internal citations and
quotations omitted). In filing preliminary objections to Appellant’s Fourth
Answer, New Matter and Counterclaim, the attorneys for the additional
Appellees entered a limited appearance for purposes of objecting on the
basis of improper joinder. The mere fact that counsel for the additional
Appellees entered an appearance does not waive their right to challenge lack
of service. Fleehr, supra.
Furthermore, Appellant contends that “[i]t was complete error to
dismiss the third-party Joinder Complaint due to non-service, when it had
been served pursuant to Pa.R.C.P. 440, by regular mail, upon counsel of
record.” Appellant’s Brief at 23. This argument is off base. Pennsylvania
Rule of Civil Procedure 425 sets forth: “Original process shall be served upon
an additional defendant who is not already a party to the action in the same
manner as if he or she were an original defendant.” Pa.R.C.P. 425. Original
process “shall be served within the Commonwealth only by the sheriff.”
Pa.R.C.P. 400. Pennsylvania Rule of Civil Procedure 440, on the other hand,
describes how service should be made for “[c]opies of all legal papers other
than original process. . .” Pa.R.C.P. 440 (emphasis added). Additionally, as
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pointed out by the trial court, Appellant admitted in his “Answer to Additional
Defendants’ Preliminary Objections to Defendant’s Amended Joinder
Complaint,” dated December 7, 2011, that he did not serve the “new
parties.” See TCO at 2. The trial court correctly observed that Appellant’s
mailing of the additional joinder complaint to Appellees’ attorney did not
constitute service under the Pennsylvania Rules of Civil Procedure. TCO at
7.
Finally, Appellant claims that it was error for the trial court to dismiss
this case for docket inactivity “[w]hen the hiatus was due to the automatic
stay imposed by bankruptcy law, and when the court acted solely sua sponte
and without taking any evidence, and when the court did not schedule the
matter for a hearing (nor even for oral or written argument)[.]” Appellant’s
Brief at 4. We would conclude that these arguments also fail.
The record shows that Appellant was the only counterclaim plaintiff,
and the bankruptcy proceedings only related to Appellant’s co-defendant.
The trial court explained:
[Appellant] suggests the other defendant, Ericka
Kirkpatrick, had a bankruptcy case in federal court which
protracted the instant case. [] Kirkpatrick has not been involved
in [Appellant’s] counterclaim which was litigated solely on
[Appellant’s] behalf. Thus, the inaction of [Appellant] was
independent of [] Kirkpatrick’s bankruptcy proceeding. Even
though [] Kirkpatrick’s bankruptcy case has a docket number of
13-10856, [indicating that the case was initiated in 2013,]
[Appellant’s counsel] filed the suggestion of bankruptcy in this
court only on March 26, 2015. Nevertheless, for approximately
two years from 2011-2013, [Appellant] did nothing to perfect
service on the additional [Appellees].
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TCO at 6. Given that Appellant was not involved in the bankruptcy
proceeding, and that Appellant nevertheless failed to address the issue of
service in the years preceding or following his co-defendant’s bankruptcy,
Appellant’s argument that the “hiatus” was caused by the bankruptcy case is
unpersuasive.
Furthermore, Pennsylvania Rule of Judicial Administration 1901
explicitly permits a tribunal, on its own motion, to terminate a matter where
the matter has been inactive for an unreasonable period of time. See
Pa.R.J.A. 1901(a). The Rule also sets forth that “[b]efore any order
terminating a matter on the ground of unreasonable inactivity is entered, the
parties shall be given at least 30 days' written notice of opportunity for
hearing on such proposed termination.” Pa.R.J.A. 1901(c).
Here, the docket reflects that on February 23, 2015, the trial court
issued a rule to show cause why the case should not be terminated for
inactivity and ordered that the parties appear for status/argument/hearing
on March 26, 2015. However, the status/argument/hearing did not take
place then because, according to Appellant, “[u]pon receiving this
Suggestion of Bankruptcy, the judge in the lower court cancelled his March
26, 2015, hearing (this cancellation was done via a phone call which the
undersigned received from Chambers, rather than via any Order of Court).”
Appellant’s Brief at 9-10. This Court notes that the Suggestion of
Bankruptcy, filed by Appellant, was docketed on March 26, 2015.
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The trial court later scheduled a status hearing on May 8, 2015, which
was subsequently rescheduled to June 25, 2015. At that status hearing,
Appellee’s counsel informed the trial court that preliminary objections filed
by the additional Appellees were still pending. As a result, the trial court
continued the June 25, 2015 status hearing to July 6, 2015, where the
parties met with the court and had further argument on the preliminary
objections, regarding lack of service. Following the July 6, 2015 argument,
the trial court issued an order dismissing the matter for failure to prosecute,
in which it explained:
[I]t appears that [Appellee] has had [its] claims resolved and
that the only thing remaining before this Court is a counterclaim
filed by [Appellant] in response to [Appellee’s] Complaint, and it
further appearing that said Complaint was never served on
[additional Appellees], and that nearly four years have passed
since the said counterclaim was filed by [Appellant], and it
further appearing that, even to this date, after this [c]ourt
issued its Rule to Show Cause, the said Complaint in the
counterclaim has still not been served, it is hereby ordered that
the matter which remains before this [c]ourt, that being the
counterclaim of [Appellant] versus [Appellee] and others, is
dismissed for failure to prosecute.
Order, 7/14/15, at 3-4.
Here, Appellant appeared twice before the trial court following its order
to show cause why the case should not be terminated for inactivity. At
those times, Appellant had opportunities to advance his reasons to the trial
court for failing to serve the additional Appellees, particularly because the
preliminary objections of the additional Appellees centered on lack of
service. Furthermore, Appellant still did not serve the additional Appellees
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following the trial court’s rule to show cause. As the trial court noted,
“[t]here were no factual disputes regarding service and lack of prosecution;
the issues were purely legal. Despite [Appellant’s] contention to the
contrary, [Appellant] had his day in argument court.” TCO at 7. Further, as
pointed out by Appellee, Appellant “never petitioned the court nor filed a
motion to establish the so-called factual determinations he now claims on
appeal would have established his alleged compelling reasons for inactivity.”
Appellee’s Brief at 26. Accordingly, we would conclude that it was not error
for the trial court to dismiss the matter where Appellant clearly had an
opportunity be heard.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2016
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