J-A13007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIRSIS DELA-CRUZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
OMAR CABAN AND JOVAN ROLON : No. 389 EDA 2021
Appeal from the Order Entered January 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190700365
BEFORE: OLSON, J., DUBOW, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED JULY 19, 2022
Appellant, Kirsis Dela-Cruz, appeals from the order entered on January
15, 2021, which granted the motion for judgment on the pleadings filed by
Omar Caban and Jovan Rolon (hereinafter, collectively, “the Defendants”).
We vacate and remand.
On July 2, 2019, Appellant filed a complaint against the Defendants,
which sounded in negligence. Appellant averred that, on July 14, 2017,
defendant Omar Caban (hereinafter “Defendant Caban”) was operating a
Honda Ridgeline automobile, which was owned by defendant Jovan Rolon
(hereinafter “Defendant Rolon”). Appellant’s complaint declared:
7. On or about July 14, 2017, at approximately 8:30 p.m.,
[Appellant] was operating a vehicle which at or near the
intersection of Lehigh and Aramingo Avenues, Philadelphia,
[Pennsylvania], was struck by the above described Honda
Ridgeline, causing [Appellant] injuries and damages the
details of which are set forth hereinafter.
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8. The carelessness, negligence and recklessness of the
[D]efendants consisted of any or all of the following:
(a) Failing to have the aforementioned vehicle under
proper and adequate control;
(b) Operating said motor vehicle without keeping a proper
lookout for persons, objects, and road and traffic
conditions;
(c) Failing to maintain a safe, proper and adequate speed
under the circumstances;
(d) Operating said motor vehicle without due regard for
rights, safety and position of [Appellant] herein, at the
point aforesaid;
(e) Going through a red light;
(f) Failing to obey a traffic control device;
(g) Being otherwise careless and negligent under the
circumstances;
(h) Failing to comply with various ordinances of the City
of Philadelphia and statutes of the Commonwealth of
Pennsylvania pertaining to the operation of motor
vehicles upon public highways; and
(i) Any and all other acts of negligence, carelessness or
recklessness which may be otherwise proven at the time
of trial.
9. As a direct and proximate result of the negligence,
carelessness and/or recklessness of [the Defendants,
Appellant] has sustained severe and painful injuries including
but not limited to: Protruding disks at L4-5 and L5-S1, knee
sprain, lumbosacral and cervical strain and sprain. She has
suffered other serious orthopedic, neurological and soft tissue
injuries, the full extent of which have not yet been
ascertained.
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10. As a further direct and proximate result of the negligence,
carelessness, and/or recklessness of [the Defendants,
Appellant] has been and may be in the future required to
receive and undergo medical treatment and care and have
expended and may continue to expend in the future, various
and diverse sums of money for the aforementioned
treatment, all of which is to [Appellant’s] great financial
detriment and loss.
11. As a further direct and proximate result of the negligence,
carelessness, and/or recklessness of [the Defendants,
Appellant] has been unable to attend to her usual and daily
activities, occupation and labors and may have sustained a
loss in earnings and/or impairment of her earning capacity or
power.
12. As a result of the aforesaid accident, [Appellant] has
suffered property damage to her vehicle.
WHEREFORE, [Appellant] demands judgment against [the
Defendants], jointly and/or severally for punitive damages in
an amount not in excess of [$50,000.00], plus interest,
attorneys’ fees and costs of suit.
Appellant’s Complaint, 7/2/19, at ¶¶ 7-12 (emphasis omitted).
The Defendants filed preliminary objections to Appellant’s complaint.
Among other things, the Defendants requested that the trial court strike
Appellant’s complaint for insufficient specificity. According to the Defendants:
“[Appellant’s] complaint omits any specific allegations regarding material facts
such as which road the accident occurred on, where the parties’ vehicles were
positioned before and at the time of impact, in which direction the respective
vehicles were traveling, or even in what manner the accident occurred.” The
Defendants’ Preliminary Objections, 8/15/19, at ¶ 5.
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Appellant did not file a response to the Defendants’ preliminary
objections1 and, on September 10, 2019, the trial court entered an order
striking Appellant’s complaint, in its entirety and without prejudice,2 “for
insufficient specificity of [the] Defendants’ alleged negligence as to the
happening of the alleged accident.” Trial Court Order, 9/10/19, at 1.
On December 2, 2019, Appellant filed a motion for reconsideration and
requested that the trial court vacate its prior order and overrule the
Defendants’ preliminary objections; in the alternative, Appellant requested
that the trial court grant her leave to amend her complaint. See Appellant’s
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1 As our Supreme Court has held, Appellant was not required to file a response
to the Defendants’ preliminary objections. See Uniontown Newspapers,
Inc. v. Roberts, 839 A.2d 185, 190 (Pa. 2003). (“[t]here is no requirement
in the Rules of Civil Procedure that the non-moving party respond to a
preliminary objection, nor must that party defend claims asserted in the
complaint. Failure to respond does not sustain the moving party's objections
by default, nor does it waive or abandon the claim”); see also Pa.R.C.P.
1017(a)(4) Note (“[a]n answer needs to be filed to a preliminary objection
only when the preliminary objection alleges facts not of record”).
2 The language of the trial court’s order was silent as to whether the striking
of the complaint was done with or without prejudice. However, as the trial
court explained, the context of the order clearly informed the parties that the
complaint was stricken without prejudice. See Trial Court Opinion, 9/2/20, at
4 (explaining: “Appellant’s complaint was stricken in its entirety without
prejudice on September 9, 2019. All Appellant needed to do was file a new
complaint, since her complaint was stricken without prejudice”) (emphasis in
original). Certainly, the trial court struck the complaint because, it believed,
Appellant failed to plead the facts with sufficient specificity. Absent any
language in the order to the contrary, it is obvious that Appellant was implicitly
granted leave to amend so that she could plead the facts with greater
specificity.
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Motion for Reconsideration, 12/2/19, at 1. The trial court denied Appellant’s
motion on December 4, 2019. Trial Court Order, 12/4/19, at 1.
On December 16, 2019, Appellant filed a motion for leave to amend her
complaint so that she could “include more specific allegations of the negligent
acts ascribed to [the Defendants].” Appellant’s Motion for Leave to Amend,
12/16/19, at 1. The Defendants answered Appellant’s motion and argued that
Appellant’s motion was “improper because [Appellant’s] complaint has been
stricken by the court and, therefore, there is no active . . . complaint pending
before the court” that could be amended. The Defendants’ Answer, 1/6/20,
at 2.
The trial court denied Appellant’s motion for leave to amend on January
17, 2020 and, on January 28, 2020, Appellant filed a notice of appeal from
the trial court’s January 17, 2020 order. On September 1, 2020, however,
this Court entered a per curiam order that sua sponte quashed Appellant’s
appeal and declared: “[t]he January 17, 2020 order is not a final appealable
order.” Order, 9/1/20, at 1.
On December 3, 2020, the Defendants filed a motion for judgment on
the pleadings.3 Within the motion, the Defendants argued:
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3 A motion for judgment on the pleadings may only be filed “[a]fter the
relevant pleadings are closed.” Pa.R.C.P. 1034(a). Here, the relevant
pleadings were not closed at the time the Defendants filed their motion.
Indeed, since Appellant’s complaint had been stricken in its entirety and
Appellant did not file an amended complaint, there was simply no extant
(Footnote Continued Next Page)
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____________________________________________
complaint in this case. Nevertheless, Appellant does not claim error regarding
this procedural irregularity.
We note that, in Hionis v. Concord Township, 973 A.2d 1030 (Pa. Cmwlth.
2009), the Commonwealth Court explained the proper procedure for obtaining
a final order, where the trial court either dismisses or strikes a complaint
without prejudice and where the plaintiff either does not wish to or does not
timely comply with the trial court's order to amend the complaint. As the
Commonwealth Court explained:
[Precedent declares that an order striking or dismissing a
complaint without prejudice cannot] become final until a
procedural step is taken, such as receiving a judgment of non
pros. However, a judgment of non pros is not the exclusive
method for making the order final. . . . [W]ere this true, a
plaintiff's ability to appeal would become a matter of the
defendant's grace.
...
In Ayre v. Mountaintop Area Joint Sanitary Authority, 427
A.2d 1294 (Pa. Cmwlth. 1981), [the Commonwealth] Court
explained that a plaintiff who chooses not to file an amended
complaint may appeal by filing a praecipe with the trial court to
dismiss the original complaint with prejudice. In this way, the
plaintiff can convert an interlocutory order into a final and
appealable order. There are sound reasons for requiring this
intermediary step, as has been explained:
It should be noted that an order sustaining preliminary
objections often grants the plaintiff leave to amend within a
time certain or suffer dismissal. Such an order is interlocutory
and never will become appealable, because it is a mere
direction that an order be entered at some time in the future,
unaccompanied by actual entry of the specified order in the
docket. In order to appeal such an order, the plaintiff must
allow the period for amendment specified in the lower court's
order to expire, and then praecipe the lower court clerk to
enter an order dismissing the complaint.
(Footnote Continued Next Page)
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[Appellant] was required by [Pennsylvania Rule of Civil
Procedure] 1028(e) to file an amended complaint within [20]
days of the [trial] court’s September 9, 2019 order sustaining
[the] Defendants’ preliminary objections and striking the
complaint. [Appellant] failed to file an amended complaint
and failed to timely file a motion for reconsideration of the
[trial] court’s September 9, 2019 order striking the
complaint. Now, there is no complaint to establish any
genuine issue of material fact or upon which this case can
proceed to hearing or trial. Accordingly, by virtue of the
absence of any complaint, [the] Defendants are entitled to
judgment on the pleadings because there are no facts, let
alone any material facts, upon which there is any dispute or
any basis for this case to proceed.
The Defendants’ Motion, 12/3/20, at ¶¶ 19-22 (citations, paragraphing, and
some capitalization omitted).
The Defendants requested that the trial court grant their motion and
dismiss Appellant’s action with prejudice. See id. at 4.
Appellant filed an answer and requested that the trial court deny the
Defendants’ motion because “the [Defendants’] preliminary objections . . .
should never have been granted in the first place [and Appellant’s] motion for
reconsideration should have been granted in order to allow the cause of action
to proceed on the merits.” Appellant’s Answer, 12/22/20, at ¶ 27.
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20 G. RONALD DARLINGTON, ET AL., PENNSYLVANIA APPELLATE
PRACTICE § 301:19 (2008–2009).
Hionis v. Concord Twp., 973 A.2d 1030 (Pa. Cmwlth. 2009) (emphasis and
footnotes omitted); see also Branton v. Nicholas Meat, LLC, 159 A.3d 540,
554 (Pa. Super. 2017) (“[a]lthough a decision of the Commonwealth Court is
not binding upon this Court, it can be considered as persuasive authority”)
(quotation marks and citations omitted).
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On January 15, 2021, the trial court granted the Defendants’ motion
and dismissed Appellant’s action. On January 27, 2021, Appellant filed a
notice of appeal to this Court. She numbers three claims on appeal:
[1.] Did the [] trial court err in sustaining [the Defendants’]
unanswered preliminary objections to [Appellant’s]
complaint, including dismissing the entire complaint, when
[the Defendants’] preliminary objections were clearly invalid
on their face?
[2.] Did the [] trial court err in denying [Appellant’s] motion
[asking the court to reconsider its order of September 10,
2019 which sustained the Defendants’ preliminary objections
and struck Appellant’s complaint where] the preliminary
objections were clearly invalid on their face and despite the
fact that the previous order denied [Appellant] her day in
court without reasonable basis?
[3.] Did the [] trial court err in granting [the Defendants’]
motion for judgment on the pleadings when that motion was
based on an improper dismissal of [Appellant’s] complaint by
the [] trial court?
Appellant’s Brief at 4.4
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4 The trial court ordered Appellant to file a concise statement of errors
complained of on appeal, in accordance with Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant filed her Rule 1925(b) statement and declared:
Because the granting of the preliminary objections, by striking the
entire complaint, was . . . improperly granted, and because that
was believed to be the basis for the granting of the motion for
judgment on the pleadings, it is the position of [Appellant] that
judgment on the pleadings should not have been granted and that
the case should have been permitted to proceed forward on the
merits.
Appellant’s Rule 1925(b) Statement, 3/23/21, at 3.
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In essence, Appellant claims that the trial court erred when it entered
its September 10, 2019 order, which sustained the Defendants’ preliminary
objections and struck Appellant’s complaint, in its entirety and without
prejudice, “for insufficient specificity of [the] Defendants’ alleged negligence
as to the happening of the alleged accident.” See Trial Court Order, 9/10/19,
at 1. Although the September 10, 2019 order was interlocutory when entered,
a final order has now been entered in this case.5 As such, we have jurisdiction
to review the propriety of the trial court’s September 10, 2019 order. See
Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa. Super. 2008) (“a notice of appeal
filed from the entry of the final order in an action draws into question the
propriety of any prior non-final orders . . . [and i]nterlocutory orders that are
not subject to immediate appeal as of right may be reviewed in a subsequent
timely appeal of a final appealable order or judgment. Accordingly,
interlocutory orders . . . become reviewable on appeal upon the trial court's
entry of a final order”) (quotation marks and citations omitted).
As noted above, the trial court sustained the Defendants’ preliminary
objections and ordered that Appellant’s complaint be stricken, in its entirety,
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5 As explained above, Appellant sought leave to amend her complaint and, on
January 17, 2020, the trial court denied Appellant leave to amend. Appellant
filed an immediate appeal from the trial court’s January 17, 2020 order and,
on September 1, 2020, this Court sua sponte quashed Appellant’s appeal,
reasoning that “[t]he January 17, 2020 order is not a final appealable order.”
Order, 9/1/20, at 1. This Court’s September 1, 2020 order is the law of the
case and stands for the proposition that the trial court’s January 17, 2020
order was interlocutory in nature. Therefore, the trial court’s January 15,
2021 order constitutes the final order in this case.
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“for insufficient specificity of [the] Defendants’ alleged negligence as to the
happening of the alleged accident.” See Trial Court Order, 9/10/19, at 1.
Appellant claims that the trial court’s order was erroneous and argues that her
complaint was “clearly sufficient to advise [the Defendants] and their attorney
of the facts necessary to answer and defend this lawsuit.” Appellant’s Brief at
17. We agree.
Our Supreme Court has explained:
Pennsylvania is a fact-pleading jurisdiction; as such, a
complaint must provide notice of the nature of the plaintiff's
claims and also summarize the facts upon which the claims
are based. Rule of Civil Procedure 1019(a) and (b)
encapsulate this theory. Rule 1019(a) provides that in
pleadings, “the material facts on which a cause of action or
defense is based shall be stated in a concise and summary
form.” Pa.R.C.P. 1019(a). Rule 1019(b) requires that
“averments of fraud or mistake shall be averred with
particularity. Malice, intent, knowledge, and other conditions
of mind may be averred generally.” Pa.R.C.P. 1019(b). The
purpose of these rules is to require the pleader to disclose
material facts sufficient to notify the adverse party of the
claims it will have to defend against.
While our rules require the pleading of all material facts upon
which claims are based, there is no requirement to plead the
evidence upon which the pleader will rely to establish those
facts. Unified Sportsmen of Pa. v. Pa. Game Comm'n,
950 A.2d 1120, 1134 (Pa. Commw. 2008) (holding that to be
sufficiently specific, “the complaint need not cite evidence but
only those facts necessary for the defendant to prepare a
defense”). We have long recognized that the line between
pleading facts and evidence is not always bright, but distilled
the specificity requirement into two conditions that must
always be met: the pleadings must adequately explain the
nature of the claim to the opposing party so as to permit him
to prepare a defense and they must be sufficient to convince
the court that the averments are not merely subterfuge. To
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assess whether a claim has been pled with the requisite
specificity, the allegations must be viewed in the context of
the pleading as a whole.
Commonwealth by Shapiro v. Golden Gate Nat’l Senior Care LLC, 194
A.3d 1010, 1029-1030 (Pa. 2018) (brackets and some quotation marks and
citations omitted).
Read fairly and viewed in the context of the pleading as a whole,
Appellant’s complaint alleges and avers the following: on July 14, 2017, at
approximately 8:30 p.m., the Defendants were driving a Honda Ridgeline,
which was owned by Defendant Rolon; the Defendants negligently operated
their vehicle by, among other things, “[g]oing through a red light”; as a result
of this negligence, the Defendants’ vehicle struck Appellant’s vehicle “at or
near the intersection of Lehigh and Aramingo Avenues” in Philadelphia; and,
as a result of this accident, Appellant suffered multiple, specific physical,
mental, and economic injuries. See Appellant’s Complaint, 7/2/19, at
¶¶ 4-12.
To paraphrase our Supreme Court, in the case at bar: “[Appellant’s]
complaint meets the specificity requirements of Rule 1019. Read as a whole,
the [] complaint adequately details the nature of the claims so as to permit
the [Defendants] to prepare a defense and satisfies this Court that the claims
are not baseless subterfuge.” Golden Gate Nat’l Senior Care LLC, 194 A.3d
at 1030. In following, the trial court erred when it struck Appellant’s complaint
based upon the insufficiency of the pleading. We thus vacate the trial court’s
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January 15, 2021 and September 10, 2019 orders and remand this case for
further proceedings.
Orders vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2022
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