J-A11027-19
2019 PA Super 319
VICTOR R. SAWYERS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NOVELETTE DAVIS AND JOSITA : No. 1186 MDA 2018
DEJESUS :
Appeal from the Order Entered July 6, 2018
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2016-CV-07689-CV
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
DISSENTING OPINION BY OLSON, J.: FILED OCTOBER 22, 2019
I must respectfully dissent from my learned colleagues. I would reverse
the certification of finality under Pennsylvania Rule of Appellate Procedure
341(c) and remand.
As the majority ably explains, on October 12, 2016, Appellant, Victor R.
Sawyers, filed a complaint, which named both Novelette Davis (hereinafter
“Defendant Davis”) and Josita DeJesus (hereinafter “Defendant DeJesus”) as
defendants. Appellant’s Complaint, 10/12/16, at 1-10. Within the complaint,
Appellant averred that, on October 20, 2014, he was a passenger in a vehicle
operated by Defendant Davis. Id. at ¶ 5. He averred that the vehicle “collided
head-on with a vehicle operated by Defendant DeJesus, causing [Appellant]
injuries and damages.” Id. Appellant claimed that both Defendant Davis and
Defendant DeJesus were negligent and liable to him for causing his injuries.
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See id. at 1-10. Defendant DeJesus answered the complaint on September
18, 2017. See Defendant DeJesus’ Answer and New Matter, 9/18/17, at 1-7.
On April 12, 2018, Appellant “mailed a 10-day notice of intention to
enter judgment by default to Defendant Davis and [Defendant Davis’
insurance company] because Defendant Davis never filed an answer” to the
complaint. Appellant’s Brief at 9 (some capitalization omitted). In response,
Defendant Davis filed preliminary objections to Appellant’s complaint and
claimed that Appellant never properly served her with the complaint.
Defendant Davis’ Preliminary Objections, 4/20/18, at ¶¶ 18-36; see also
Pa.R.C.P. 1028(a)(1). Defendant Davis thus requested that the trial court
dismiss Appellant’s claims against her with prejudice. Defendant Davis’
Preliminary Objections, 4/20/18, at ¶ 36.
The trial court heard argument on the preliminary objections and, on
June 19, 2018, the trial court entered an order sustaining Defendant Davis’
preliminary objections on the ground of improper service of the complaint;
further, since the statute of limitations on Appellant’s claims had expired, the
trial court ordered Appellant’s complaint against Defendant Davis dismissed
with prejudice. Trial Court Order, 6/19/18, at 1; see also Trial Court Opinion,
9/21/18, at 4.
On June 29, 2018, Appellant filed a motion for reconsideration of the
June 19, 2018 order. Appellant’s motion requested that the trial court either
enter an order overruling Defendant Davis’ preliminary objections or “amend
its current order, to state that an immediate appeal to the Pennsylvania
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Superior Court would facilitate effective resolution of the entire case.”
Appellant’s Motion for Reconsideration, 6/29/18, at 8. With respect to the
latter request, Appellant provided no argument or reason as to why the trial
court should so amend its order. See id.
On July 6, 2018, the trial court entered the following order:
AND NOW, this 6th day of July 2018, upon consideration of
[Appellant’s] Motion for Reconsideration of [the] June 19,
2018 order which dismissed [Appellant’s] complaint against
[Defendant Davis], with prejudice, it is hereby ORDERED that
said motion is DENIED.
This court expressly determines that an immediate appeal of
this order would facilitate resolution of the entire case.
Trial Court Order, 7/6/18, at 1 (emphasis and some capitalization omitted).
On July 18, 2018, Appellant filed a notice of appeal from the trial court’s
July 6, 2018 order. Appellant claims on appeal that the trial court erred when
it dismissed his complaint against Defendant Davis on the ground of improper
service. See Appellant’s Brief at 4. Within his brief, Appellant does not discuss
the propriety of the trial court’s certification “that an immediate appeal of this
order would facilitate resolution of the entire case.”1 See id. at 1-31. Further,
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1 Within Appellant’s statement of jurisdiction, Appellant claims that we have
jurisdiction over this appeal “pursuant to 42 Pa.C.S. § 702(b).” Appellant’s
Brief at 1. Appellant is not correct.
42 Pa.C.S.A. § 702(b), entitled “interlocutory appeals by permission,”
declares:
When a court or other government unit, in making an
interlocutory order in a matter in which its final order would
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within the trial court’s opinion to this Court, the trial court does not explain
why it certified its order for immediate appeal. See Trial Court Opinion,
9/21/18, at 1-11. I would reverse the trial court’s certification.
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be within the jurisdiction of an appellate court, shall be of the
opinion that such order involves a controlling question of law
as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the matter, it
shall so state in such order. The appellate court may
thereupon, in its discretion, permit an appeal to be taken
from such interlocutory order.
42 Pa.C.S.A. § 702(b).
We have held:
[the Section 702(b)] certification is a jurisdictional
prerequisite to the filing of a petition for permission to appeal
pursuant to Chapter Thirteen of the Appellate Rules of
Procedure. If the trial court's order from which the appeal is
sought to be taken contains the requisite certification and if
a petition for permission to appeal is filed pursuant to Chapter
Thirteen, only then may we exercise our discretion to permit
the appeal. If a petition for permission to appeal is filed
without the requisite Section 702(b) statement or if no
petition for permission to appeal is filed with the appellate
court, the appeal will be quashed, as we are without
jurisdiction to exercise our discretion in this regard.
Commonwealth v. Brister, 16 A.3d 530, 534-535 (Pa. Super. 2011)
(quotations, citations, and some capitalization omitted).
In the case at bar, the trial court’s July 6, 2018 order does not contain the
requisite Section 702(b) certification and Appellant did not file a “petition for
permission to appeal” the order. Therefore, the order is not appealable under
Section 702(b).
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As we have explained, this Court is obligated to “first ascertain whether
the [order appealed from] is properly appealable, because the question of
appealability implicates the jurisdiction of this [C]ourt.” Commonwealth v.
Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). “The general rule is that,
unless otherwise permitted by statute, only appeals from final orders are
subject to appellate review.” Commonwealth v. Sartin, 708 A.2d 121, 122
(Pa. Super. 1998).
Pennsylvania Rule of Appellate Procedure 341 defines a “final order” as
any order that:
(1) disposes of all claims and of all parties; or
...
(3) is entered as a final order pursuant to paragraph (c) of
this rule.
Pa.R.A.P. 341(b).
In relevant part, Rule 341(c) declares:
(c) Determination of finality.--When more than one claim
for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim or when
multiple parties are involved, the trial court or other
government unit may enter a final order as to one or more
but fewer than all of the claims and parties only upon an
express determination that an immediate appeal would
facilitate resolution of the entire case. Such an order
becomes appealable when entered. In the absence of such a
determination and entry of a final order, any order or other
form of decision that adjudicates fewer than all the claims
and parties shall not constitute a final order.
Pa.R.A.P. 341(c).
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Appellant’s claims against Defendant DeJesus are viable and ongoing.
Therefore, the trial court’s July 6, 2018 order – which reaffirmed the dismissal
of Appellant’s complaint against Defendant Davis – did not “dispose[] of all
claims and of all parties” and is not final under Rule 341(b)(1). Hence, it must
be determined whether the order is properly appealable under Rule 341(c).
Rule 341(c) permits a trial court to “enter a final order as to one or more
but fewer than all of the claims and parties” by making an “express
determination that an immediate appeal would facilitate resolution of the
entire case.” Pa.R.A.P. 341(c). The note to Rule 341 declares:
[Rule 341(c)] permits an immediate appeal from an order
dismissing less than all claims or parties from a case only
upon an express determination that an immediate appeal
would facilitate resolution of the entire case. Factors to be
considered under paragraph (c) include, but are not limited
to:
(1) whether there is a significant relationship between
adjudicated and unadjudicated claims;
(2) whether there is a possibility that an appeal would be
mooted by further developments;
(3) whether there is a possibility that the court or
government unit will consider issues a second time; and
(4) whether an immediate appeal will enhance prospects
of settlement.
Pa.R.A.P. 341 note.
There is a tension between Rule 341(c) and the 1992 amendment to
Rule 341. As the note to Rule 341 explains:
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The 1992 amendment [to Rule 341] generally eliminates
appeals as of right under Pa.R.A.P. 341 from orders not
ending the litigation as to all claims and as to all parties.
Formerly, there was case law that orders not ending the
litigation as to all claims and all parties are final orders if such
orders have the practical consequence of putting a litigant
out of court.
Id.
Given that Rule 341(c) permits a trial court to certify an otherwise
non-appealable, interlocutory order as final and immediately appealable, the
use of Rule 341(c) must be cabined, lest it swallow the general rule of finality.
Therefore, as we have held:
A determination that an immediate appeal of a non-final
order is appropriate should be made only in the most
extraordinary circumstances because such action would
frustrate the amendments to the Rule. The revisions to the
Rule were designed to eliminate the confusion created by the
prior case law and to prevent piecemeal appeals which
unnecessarily result in delay.
...
The mere fact that some of the parties have been
dismissed from a case, or that some of the counts of a
multi-count complaint have been dismissed is
insufficient reason to classify an order as final. While
the comment to Rule 341 suggests areas where certification
may be appropriate, courts are cautioned to refuse to
classify orders as final except where the failure to do
so would result in an injustice which a later appeal
[cannot] correct.
Pullman Power Prods. of Can. Ltd. v. Basic Eng’rs, Inc., 713 A.2d 1169,
1172-1173 (Pa. Super. 1998) (quotations and citations omitted) (emphasis
added), quoting Liberty State Bank v. N.E. Bank of Pa., 683 A.2d 889, 890
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(Pa. Super. 1996) and McKinney v. Albright, 632 A.2d 937, 939 (Pa. Super.
1993).
The trial court’s July 6, 2018 order declares: “this court expressly
determines that an immediate appeal of this order would facilitate resolution
of the entire case.” Trial Court Order, 7/6/18, at 1. This language tracks the
requirements of Rule 341(c); thus, the trial court certified that its July 6, 2018
order is a “final order.” Nevertheless, under our precedent, we may look
behind a trial court’s certification to determine whether the trial court properly
certified an otherwise interlocutory order as final – and we may do so sua
sponte. Pullman Power Prods., 713 A.2d at 1174 (reversing the trial court’s
Rule 341(c) certification of an order as final); F.D.P. v. Ferrara, 804 A.2d
1221, 1227 n.6 (Pa. Super. 2002) (sua sponte raising and analyzing the issue
of whether the trial court properly certified its order as final under Rule 341(c)
and concluding that the trial court did, in fact, properly certify its order as
final); see also Knopick v. Boyle, 189 A.3d 432, 436 (Pa. Super. 2018)
(“[t]he appealability of an order directly implicates the jurisdiction of the court
asked to review the order. Accordingly, this Court has the power to inquire at
any time, sua sponte, whether an order is appealable”) (quotations and
citations omitted). Our opinion in Pullman Power Products guides my
inquiry into whether the trial court properly certified its order as final.
In Pullman Power Products, Pullman filed a complaint against Stone
& Webster Canada, Limited (“S&W”) and Basic Engineers, Inc. (“Basic”).
Essentially, the complaint alleged that the defendants breached their
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contractual duties to Pullman. See Pullman Power Prods., 713 A.2d at
1170-1171.
S&W filed preliminary objections to the complaint and claimed lack of
personal jurisdiction. Id. at 1171. The trial court sustained S&W’s preliminary
objections and dismissed Pullman’s complaint against it with prejudice. With
Pullman’s claims against Basic still extant, the trial court certified the order
dismissing S&W from the case as final, by providing “it is expressly determined
that an immediate appeal of this order would facilitate resolution of the entire
case.” Id. (some capitalization omitted).
Both Pullman and S&W filed appeals to this Court. Pullman claimed that
the trial court erred in sustaining S&W’s preliminary objections; S&W claimed
that the trial court erred in certifying the order as final under Rule 341(c). We
agreed with S&W and held that the trial court erred when it certified its order
as final. Id. at 1174.
At the outset, we looked at the note to Rule 341 and at the above-quoted
four, nonexclusive “[f]actors to be considered” for certification under Rule
341(c). We held:
the trial court should consider at least the four factors
mentioned in the Official Note to Rule 341, and [] the trial
court should only certify a non-final order for immediate
appeal in “the most extraordinary circumstances” and “where
the failure to do so would result in an injustice which a later
appeal [cannot] correct.” Accordingly, we find that the
aforementioned factors and requirements should be
considered and met before a trial court may certify, pursuant
to Pa.R.A.P. 341(c), a non-final order for immediate appeal
to this Court.
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Id. at 1173 (some citations omitted).
The Pullman Power Products Court remarked that the trial court in
its case “provided no rationale for its order certifying this case for immediate
appeal; it did not specifically find extraordinary circumstances and it did not
specifically find that a failure to classify its order as final would result in an
injustice which a later appeal could not correct.” Id. This Court then
independently analyzed the four factors listed in the note to Rule 341, to
determine the propriety of the certification. We held: 1) there was not a
“significant relationship between [the] adjudicated [claim against S&W] and
[the unadjudicated claims against] Basic;” 2) “[t]he outcome of Pullman’s
lawsuit against Basic would not preclude [Pullman’s] pursuance of its lawsuit
against S&W;” 3) although there was “the possibility that a court [would] have
to consider the jurisdictional issue again if an immediate appeal were not
permitted, . . . the failure to consider the issue [during the current appeal
would] not result in an injustice to Pullman that a later appeal [could not]
correct; and, 4) “settlement may be encouraged regardless of whether this
Court decides the jurisdictional issue [during the current appeal].” Id.
Therefore, we held:
Based upon (a) our aforementioned findings regarding the
four factors that the trial court should have considered,
pursuant to the Official Note to Pa.R.A.P. 341, in determining
whether to certify this case for immediate appeal to this
Court; (b) the trial court's failure to demonstrate that
extraordinary circumstances justified an immediate appeal in
this case; and, (c) the trial court's failure to demonstrate that
refusal to classify the . . . order would result in an injustice
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which a later appeal cannot correct, we find that the trial
court erred in determining that an immediate appeal would
facilitate resolution of the entire case.
Id. at 1173-1174.
We thus reversed the trial court’s certification order. Id. at 1174.
As applied to the case at bar, I initially note that (like the trial court in
Pullman Power Products) the current trial court did not: analyze the four
factors contained in the note to Rule 341(c); demonstrate that extraordinary
circumstances justified an immediate appeal in this case; or, demonstrate that
refusal to classify its order as final would result in an injustice which a later
appeal could not correct. See Trial Court Order, 7/6/18, at 1; Trial Court
Opinion, 9/21/18, at 1-11. Further, at no point did Appellant ever provide the
trial court or this Court with any reason or analysis as to why the trial court
should certify its order for immediate appeal or as to why that certification
was proper. See Appellant’s Motion for Reconsideration, 6/29/18, at 1-8;
Appellant’s Brief at 1-31. Nevertheless, like the Pullman Power Products
Court, I will independently analyze the propriety of the certification. See
Pullman Power Prods., 713 A.2d at 1173-1174. My analysis begins with
the four factors listed in the note to Rule 341. Pa.R.A.P. 341 note; Pullman
Power Prods., 713 A.2d at 1173.
The first factor is “whether there is a significant relationship between
adjudicated and unadjudicated claims.” Pa.R.A.P. 341 note. As West’s
Pennsylvania Practice explains:
The degree to which adjudicated and unadjudicated claims
are related bears directly upon the decision of whether an
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appeal under Rule 341(c) is proper. Undesirable tension is
created where the trial court and the appeals court
simultaneously consider similar factual or legal issues in the
context of the same action. Where the adjudicated and
unadjudicated claims are closely related, either factually or
legally, certification normally should not be granted.
20 WEST’S PENNSYLVANIA PRACTICE, APPELLATE PRACTICE, § 341:6.
In the case at bar, the adjudicated claim concerns service of process on
Defendant Davis. This claim is discrete from the unadjudicated negligence
claims. Therefore, as in Pullman Power Products, this factor does not
disfavor the certification.
As was also true in Pullman Power Products, the second factor –
“whether there is a possibility that an appeal would be mooted by further
developments” – does not disfavor the certification. Indeed, the current
appeal will be unaffected by the progression or outcome of Appellant’s case
against Defendant DeJesus. See 20 WEST’S PENNSYLVANIA PRACTICE, APPELLATE
PRACTICE, § 341:7 (“[t]o the extent that disposition of pending related claims
in the trial court may render moot the issue on appeal, certification should not
be granted”).
Third, I must consider “whether there is a possibility that the court or
government unit will consider issues a second time.” Pa.R.A.P. 341 note.
According to West’s Pennsylvania Practice:
There is a possibility that resolution of legal issues by the
appellate court will aid the trial court in resolving the same
legal issue in the same or other cases. For instance, if the
appeal involves the interpretation of a statutory provision,
review by the appellate court may aid the trial court in ruling
upon the same provisions in the future.
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20 WEST’S PENNSYLVANIA PRACTICE, APPELLATE PRACTICE, § 341:8.
Appellant’s claims on appeal concern the service of process upon a single
defendant. These claims have no bearing upon any other issue in controversy
and the resolution of the claims will not aid the trial court in ruling upon the
same issues in the future. Therefore, this factor disfavors certification.
Finally, I must consider whether “an immediate appeal will enhance
[the] prospects of settlement.” Pa.R.A.P. 341 note. As to this factor, I note
that Appellant has never made any assertion, whatsoever, that an immediate
appeal will enhance the prospects of settlement. Indeed, in Appellant’s motion
for reconsideration, Appellant simply tacked on a request for certification –
without any supporting argument or claim as to why certification would be
proper; and, on appeal, Appellant has not provided us with any argument as
to why certification was appropriate. I further note that, regardless of the
status of Appellant’s claims against Defendant Davis, Appellant may always
settle any claim he has against Defendant DeJesus. Therefore, in the absence
of any statement to the contrary by Appellant, this factor disfavors
certification.
Thus, in the case at bar, two of the four factors do not disfavor allowing
the immediate appeal, none of the factors weigh heavily in favor of allowing
the appeal, and two of the four factors disfavor an immediate appeal. The
balancing of the factors thus favors reversal of the trial court’s certification.
Indeed, in Pullman Power Products, the four factors weighed more heavily
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in favor of allowing the appeal – and the Pullman Power Products Court
still reversed the certification.
Further, as was true in Pullman Power Products, both the trial court
and Appellant failed “to demonstrate that extraordinary circumstances
justified an immediate appeal in this case” or that “refusal to classify the . . .
order would result in an injustice which a later appeal cannot correct.” See
Pullman Power Prods., 713 A.2d at 1173-1174. At the outset, I recognize
that postponing review of Appellant’s claim might lead to increased costs, in
the form of a new trial, if the claim of improper service is determined to be
meritorious. I also recognize that, in appropriate cases, this concern can
militate in favor of certification. See F.D.P., 804 A.2d at 1227 n.6 (finding
that the certification was proper, in part, because: “if we delay determining
whether [a defendant] properly was dismissed, there is a significant risk of
the necessity for costly re-litigation, as the case involves complex issues of
liability based on the actions of third parties”). Nevertheless, this concern
cannot rule the day – or else certification would become the norm, rather than
the exception. Moreover, in this case, there has been no showing that “the
case involves complex issues of liability” where, if review is postponed, “there
[would be] a significant risk of the necessity for costly re-litigation.” See id.
Therefore, this concern does not allow for certification.
Finally, with due respect to the litigants, I observe that this is a
conventional civil case that concerns an unexceptional service of process
issue. Simply stated, I see no “extraordinary circumstances” that justify an
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immediate appeal and I see no possibility that, without an immediate appeal,
an injustice would occur that a later appeal could not correct.
I thus conclude that the trial court erred in certifying its order for
immediate appeal; accordingly, I conclude that we lack jurisdiction to consider
this appeal.2 Therefore, I would reverse the portion of the trial court’s order
that certified the order for immediate appeal and remand. I respectfully
dissent.
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2I note that interlocutory orders are appealable in certain circumstances. Our
Supreme Court has explained:
in addition to an appeal from final orders of the Court of
Common Pleas, our rules provide the Superior Court with
jurisdiction in the following situations: interlocutory appeals
that may be taken as of right, Pa.R.A.P. 311; interlocutory
appeals that may be taken by permission, Pa.R.A.P. [312];
appeals that may be taken from a collateral order, Pa.R.A.P.
313; and appeals that may be taken from certain distribution
orders by the Orphans' Court Division, Pa.R.A.P. 342.
Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (quotations
omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d 345, 349 n.6
(Pa. 2002).
Here, the challenged order is not an appeal from an orphans’ court distribution
order (per Pa.R.A.P. 342). Further, the order is not defined as appealable as
of right (per Pa.R.A.P. 311), Appellant did not ask for or receive permission to
appeal the order (per Pa.R.A.P. 312), and Appellant has not provided this
Court with any argument as to whether – or how – the order could satisfy the
collateral order doctrine (per Pa.R.A.P. 313).
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