ECI, LLC. v. Campisi Construction, Inc. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ECI, LLC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAMPISI CONSTRUCTION, INC., :
AND ANTHONY G. CAMPISI :
: No. 2863 EDA 2019
:
APPEAL OF: TS ENVIRONMENTAL :
CONTRACTORS, INC. :
Appeal from the Order Entered August 26, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2011-12517
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED: MAY 21, 2021
TS Environmental Contractors, Inc. (“TSEC”), appeals from the order,
entered in the Court of Common Pleas of Montgomery County, denying its
“Motion to Strike and Vacate Declaratory Judgment for Lack of Subject Matter
Jurisdiction.” After our careful review, we reverse the order of the trial court
and direct that the declaratory judgment be vacated.
The trial court summarized the factual and procedural history of this
matter as follows:
Plaintiff ECI, LLC (hereinafter “ECI”) and non-party Alexander
McConnell (hereinafter “McConnell’’) [(collectively “Petitioners”)]
filed a Third Amended Emergency Action for Declaratory Judgment
on May 4, 2018[, . . .] as part of ongoing efforts to recover a
judgment in favor of ECI and against Defendants Campisi
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* Retired Senior Judge assigned to the Superior Court.
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Construction[,] Inc. and Anthony G. Campisi [(hereinafter
“Campisi Defendants”)] in the amount of $174,047.37. The first
Emergency Action for Declaratory Judgment was served on TSEC’s
then-attorney[,] Adam Sager, Esquire.1 The Third Amended
Emergency Action for Declaratory Judgment was served on
“Campisi Construction, Inc., et al.” at . . . Anthony Campisi’s
personal address, TSEC’s registered place of business, and
Campisi Construction Inc.’s registered place of business. On May
11, 2018, Anthony Campisi filed an Answer to the Third Amended
Emergency Action for Declaratory Judgment, in which he
answered both on behalf of TSEC and himself individually.2 In this
Answer, Anthony Campisi did not object to this Court’s jurisdiction
or allege improper service, but instead made arguments on the
merits of the case. Further, Anthony Campisi, on behalf of TSEC
and himself, did not deny having possession, custody, or control
of the equipment at issue in the Third Amended Declaratory
Judgment Action.3
1 Although Adam Sager, Esquire[,] had not formally filed an
entry of appearance for TSEC, he had previously filed a
property claim action and appeared as counsel for TSEC at
the property claim hearing under this docket, making him
counsel-of-record and the proper party to be served on
behalf of TSEC.
2 In this Answer, Anthony Campisi made the following
statements suggesting that he was filing the Answer on
behalf of TSEC as an authorized agent or representative:
(1) “The defendant herein is Anthony G. Campisi and TS
Environmental.” (2) “Respondents, Anthony Campisi, and
TS Environmental agree with ECI and Alex McConnel’s [sic]
demand for emergency hearing.” (3) “As Your Honor can
see by his petition every accusation he presented about
myself or [TSEC] he had actually committed himself.” In its
Answer to the Motion of Alexander McConnell for
Clarification, TSEC admits that Anthony Campisi filed the
Answer to the Third Amended Declaratory Action on behalf
of TSEC and himself.
3 TSEC admits this fact in its Answer to the Motion of
Alexander McConnell for Clarification.
On September 21, 2018, th[e trial] court held a hearing/oral
argument on the Third Amended Emergency Action for
Declaratory Judgment, attended by Anthony Campisi, on behalf of
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himself and TSEC,4 and by counsel for ECI and McConnell. After
holding oral argument, th[e] court entered a Memorandum
Opinion-Order requiring that certain [enumerated] equipment []
be “turned over” to McConnell and to ECI by “the Montgomery
County Sheriff, [the Campisi Defendants], or any other individual
or entity who is in possession of the equipment[.]” Th[e c]ourt’s
Memorandum Opinion-Order also ordered that TSEC’s judgment
against McConnell for conversion at Docket MDJ-3124-CV-261-
2016 be considered satisfied, based on McConnell’s full payment
of the damages owed. Finally, th[e c]ourt’s Memorandum
Opinion-Order ordered that “Defendants” shall be jointly and
severally liable for any damage to the equipment enumerated
within and for all storage costs related to the storage and recovery
of the equipment enumerated within.
4 [THE COURT:] Are you here on behalf of yourself or
[TSEC]?
[ANTHONY CAMPISI:] On behalf of everybody, Your
Honor. Adam Sager [Counsel for TSEC] kind of like nailed
me at the last moment.
Q: Well, I’m going to let you speak on behalf of yourself.
The corporation has to be represented by an attorney under
the law. So I don’t know how you’re going to split that hair,
but this has to do with yourself, TS[EC], and as Mr. Saraceni
is asking me to recognize TS[EC] as an alter[-]ego of
Campisi. See N.T. Oral Argument 9/21/18[, at] 18
(emphasis added).
On October 5, 2018, Anthony Campisi filed a Praecipe for
Appearance, entering his pro se appearance for TSEC, Campisi
Construction, and Campisi Partnership, LLP.5 On October 9, 2018,
a motion for reconsideration of th[e] court’s Memorandum
Opinion-Order dated September 26, 2018 was filed, requesting
that the Memorandum Opinion-Order be vacated. Th[e] court
denied the motion for reconsideration in an order dated October
11, 2018, and further ordered that counsel who filed said motion—
Matthew B. Weisberg, Esquire—enter his appearance on behalf of
“defendants.” Subsequently, [Attorney Weisberg] entered his
appearance for [the Campisi Defendants] and [TSEC], suggesting
that the motion for reconsideration was filed on behalf of TSEC.
The motion for reconsideration did not raise the issue of improper
service or lack of subject matter jurisdiction, instead making
arguments on the merits.
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5 Counsel for TSEC, Adam Sager, Esquire, filed a praecipe
for withdrawal of appearance for Campisi Construction and
Campisi Partnership[,] LLP on October 5, 2018, but to date,
he has never formally withdrawn from representing TSEC.
On July 24, 2019, TSEC filed a Motion to Strike and Vacate
Declaratory Judgment for Lack of Subject Matter Jurisdiction,
which this court denied in an order dated August 26, 2019. On
September 18, 2019, TSEC filed a timely notice of appeal.
Trial Court Opinion, 11/14/19, at 1-3 (citations to record and unnecessary
capitalization omitted).
On appeal, TSEC asserts that the trial court erred in both summarily
granting the declaratory judgment and denying its motion to strike and vacate
that judgment because the court lacked jurisdiction to enter a declaratory
judgment due to the omission of TSEC as an indispensable party to the action.
TSEC asserts that the underlying judgment—collection of which was the goal
of the declaratory judgment action—was entered against the Campisi
Defendants, not TSEC. Although Petitioners asserted various claims against
TSEC in the declaratory judgment action, TSEC was not properly joined as a
defendant and Campisi was legally incapable of representing the company’s
interests, both as a non-attorney and as a party with rights adverse to TSEC.
TSEC argues that, instead of pursuing a declaratory judgment action, which
“directly impacted TSEC’s property rights regardless of who might be
ultimately found to possess the equipment at issue,” Brief of Appellant, at 32
(emphasis in original), ECI could and should have pursued the “existing
judgment collection procedures and rules” available under Pa.R.C.P. 3118
(Supplementary relief in aid of execution), which are intended to “protect the
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due process and property rights of non-parties,” Brief of Appellant, at 38, while
at the same time “provid[ing] a speedy means for the judgment creditor to
obtain satisfaction of his judgment without resort to ‘full dress equity
proceedings.’” Id. at 35, quoting Chadwin v. Crouse, 386 A.2d 33, 37 (Pa.
Super. 1978). TSEC argues that the trial court
exceeded its jurisdictional authority by declaring a final judgment
against TSEC that forever took away TSEC’s assets and imposed
liability on TSEC even though: (a) TSEC was not a party to these
proceedings[;] (b) TSEC had not been given the opportunity to
conduct any discovery[;] and (c) TSEC was not provided with a
trial.
Brief of Appellant, at 38-39 (emphasis omitted). We are constrained to agree.
Generally, a party may obtain a declaration of existing legal rights,
duties, or status of parties by filing a petition pursuant to the Declaratory
Judgments Act (“Act”). Bayada Nurses, Inc. v. Com., Dep’t of Labor &
Indus., 8 A.3d 866, 874 (Pa. 2010). The purpose of the Act is to “settle and
to afford relief from uncertainty and insecurity with respect to rights, status,
and other legal relations, and is to be liberally construed and administered.”
42 Pa.C.S.A. § 7541(a). “When declaratory relief is sought, all persons shall
be made parties who have or claim any interest which would be affected by
the declaration, and no declaration shall prejudice the rights of persons not
parties to the proceeding.” 42 Pa.C.S.A. § 7540. A party is indispensable
when his rights are so connected with the claims of the litigants that no decree
can be made without impairing those rights. Sprague v. Casey, 550 A.2d
184 (Pa. 1988). The statutory provision requiring joinder of all indispensable
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parties constitutes a jurisdictional requirement. See Vale Chem. Co. v.
Hartford Accident and Indem. Co., 516 A.2d 684 (Pa. 1986).
“[I]t is never too late to attack a judgment or decree for want of
jurisdiction. That question is always open.” In Re Simpson’s
Estate, [] 98 A. 35, 38 ([Pa.] 1916). “Such a judgment is entitled
to no authority or respect, and is subject to impeachment in
collateral proceedings at any time by one whose rights it purports
to affect.” Moskowitz’s Registration Case, [] 196 A. 498, 502
([Pa.] 1938). . . . Moreover, [it] is “well settled that a judgment
or decree rendered by a court which lacks jurisdiction of the
subject matter or of the person is null and void and is subject to
attack by the parties in the same court or may be collaterally
attacked at any time.” Com. ex rel. Howard v. Howard, [] 10
A.2d 779, 781 (1933) [([Pa. Super.] 1940)].
Barnes v. McKellar, 644 A.2d 770, 773 (Pa. Super. 1994). See also
Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 28-29 (Pa.
Super. 2015) (failure to join indispensable party is non-waivable defect that
implicates trial court's subject matter jurisdiction).
Where issues of fact must be determined in an action seeking
declaratory judgment, those issues must be determined as in other civil
actions. Regis Ins. Co. v. All Am. Rathskeller, Inc., 976 A.2d 1157, 1162
(Pa. Super. 2009), citing 42 Pa.C.S.A. § 7539. See also Pa.R.C.P. 1601
(practice and procedure in declaratory judgment action shall follow, as nearly
as may be, rules governing civil action).
In addition,
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
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before the court”). See also Shortz v. Farrell, [] 193 A. 20, 24
([Pa.] 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). []
“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). []
In a civil action, the court lacks jurisdiction to consider the claims
raised by [a] non-attorney. See, e.g., Spirit of the Avenger
Ministries v. Commonwealth, 767 A.2d 1130, 1131 (Pa.
Cmwlth. 2001) (holding appellate court lacked jurisdiction to
consider claims, which non-attorney pastor made on behalf of
church in appeal from tax-exemption determination of agency);
McCain v. Curione, [] 527 A.2d 591, 594 ([Pa. Cmwlth.] 1987)
(holding court lacked jurisdiction to consider pleadings, which
non-attorney filed on behalf of prisoner in civil action).
David R. Nicholson, Builder, LLC v. Jablonski, 163 A.3d 1048, 1052-54
(Pa. Super. 2017).
Here, Petitioners commenced a declaratory judgment action seeking a
declaration of their rights in certain equipment vis a vis, among others, TSEC,
a non-party to the underlying action that resulted in the judgment ECI sought
to satisfy. Petitioners sought to hold TSEC jointly and severally liable with the
Campisi Defendants for any damage to the equipment in question, as well as
for costs related to the storage of the equipment. Petitioners further
requested that the court mark TSEC’s judgment against McConnell, in the
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amount of $12,189.40, satisfied. Finally, Petitioners sought a declaration that
TSEC is an alter ego of the Campisi Defendants. Clearly, TSEC had an “interest
which would be affected by the declaration” if granted by the Court. 42
Pa.C.S.A. § 7540. Accordingly, TSEC was an indispensable party to the action
and was required to be joined as a party.1
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1 The cases cited by the trial court in support of its assertion that the
mandatory joinder requirement of the Act is “subject to limitations,” Trial
Court Opinion, 11/14/19, at 13, are inapposite. In City of Philadelphia v.
Com., 838 A.2d 566 (Pa. 2003), our Supreme Court held that, in proceedings
under the Act, where a person’s official designee is already a party, the
participation of such designee may alone be sufficient, where the interests of
the two are identical, as participation of both would result in duplicative filings.
Here, Campisi, a non-lawyer, is prohibited by law from representing a
corporate entity in legal proceedings. See David R. Nicholson, Builder,
LLC, supra. Moreover, Campisi’s interests are not identical to those of TSEC.
As TSEC notes in its brief, because the court held the Campisi Defendants and
TSEC jointly and severally liable for damage and storage costs, “Campisi ha[s]
an adverse personal interest in seeing TSEC bear the cost of that liability, and
vice versa. In addition, to the extent that the liability was paid by [] Campisi,
he may have [] potential claims for indemnity or contribution against TSEC.”
Brief of Appellant, at 47. Accordingly, the court’s reliance on City of
Philadelphia is misplaced.
In Estate of Moore, 871 A.2d 196 (Pa. Super. 2005), a third-party buyer
sought specific performance in a dispute over real property belonging to an
estate. After the buyer initiated an action against the administratrix in her
fiduciary capacity, the administratrix transferred the subject estate property
to herself as an individual. The trial court ultimately held that the buyer was
entitled to specific performance. On appeal, the administratrix claimed that
the trial court lacked jurisdiction over the matter because the buyer had failed
to join her, in her individual capacity, as an indispensable party. This Court
concluded, where at the time the action was initiated, all indispensable parties
were joined, the administratrix’s subsequent act of deeding the property to
herself did not defeat the court’s jurisdiction. Moreover, because the estate’s
sole other heir had assigned her interest to the administratrix, the
(Footnote Continued Next Page)
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administratix’s interests as fiduciary and individual converged and were
identical.
In relying on Estate of Moore to support its conclusion that TSEC is not an
indispensable party, the trial court focuses almost exclusively on a statement
by the Court that the administratrix’s due process rights as an individual were
not violated because “she created the predicament herself while in the midst
of litigation over the property, and she had an opportunity to be heard.”
Estate of Moore, 871 A.2d at 204. The court analogizes the actions of the
administratrix to those it attributes to TSEC in this matter:
The scenario described in Estate of Moore is exactly that
contemplated in the case at hand. Here, TSEC is a non-party
appellant that directly contributed to “creating the predicament”
of litigation over the property in question, and has been involved
and noticed of the proceedings at every step of the way—from
service of process at its business address, numerous filings on its
behalf under this docket by Anthony Campisi and various counsel,
and attendance at oral argument via its representative Anthony
Campisi. TSEC cannot now claim that it had no notice and no
opportunity to be heard, when the record belies these claims. If
the entire purpose of holding a party indispensable is “the
protection of due process rights,” then TSEC cannot be said to be
an indispensable party, as its rights were already adequately
protected.
Trial Court Opinion, 11/14/19, at 16.
Although the court does not explain precisely how TSEC “created the
predicament” that necessitated the filing of the declaratory judgment action,
we find the court’s reliance on a statement that amounts to mere dicta to be
misplaced. The holding in Estate of Moore was grounded in the fact that the
trial court possessed jurisdiction where all indispensable parties were joined
at the time jurisdiction attached. See In re Estate of Moore, 871 A.2d at
203, quoting Get Set Org. v. Philadelphia Fed’n of Teachers, 286 A.2d
633, 636 (Pa. 1971) (“[J]urisdiction once acquired is not defeated by
subsequent events, even though they are of such a character as would have
prevented jurisdiction from attaching in the first instance.”). The Court’s
passing reference to the administratrix having “creat[ed] the predicament”
was ancillary to the Court’s holding, and we can find no other case applying
that theory to create an exception to the Act’s mandatory joinder requirement.
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Proper service is a prerequisite to the court’s jurisdiction over the person
of a defendant. Anzalone v. Vormack, 718 A.2d 1246, 1248 (Pa. Super.
1998). Pennsylvania Rule of Civil Procedure 1601(a) provides that “a plaintiff
seeking only declaratory relief shall commence an action by filing a complaint
captioned ‘Action for Declaratory Judgment.’ The practice and procedure shall
follow, as nearly as may be, the rules governing the civil action.” Pa.R.C.P.
1601(a) (emphasis added). Rule of Civil Procedure 400(a) provides that,
“(e)xcept as provided in subdivisions (b) and (c) and in Rules 400.1 and
1930.4, original process shall be served within the Commonwealth only by the
sheriff.” Pa.R.C.P. 400(a). Rule 400(b) provides: “In addition to service by
the sheriff, original process may be served also by a competent adult in the
following actions: . . . (3) declaratory judgment when declaratory relief is the
only relief sought.” Pa.R.C.P. 440(b) (emphasis added).
Here, rather than complying with the Rules of Civil Procedure governing
the service of original process, Petitioners simply sent a copy of the
declaratory judgment action by first class, regular mail to “Campisi
Construction, et al.” at an address purportedly shared by TSEC. See
Certificate of Service, 5/19/18. Service by first class mail, as effected in this
case, fails to confer jurisdiction on the trial court. Gallman v. Martin, 889
A.2d 649, 652 (Pa. Cmwlth. 2005) (affirming dismissal of declaratory
judgment action for lack of jurisdiction where complaint served by certified
mail); Weaver v. Martin, 655 A.2d 180, 184 (Pa. Super. 1995) (Rules of Civil
Procedure do not allow for service of process by certified mail). Moreover,
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TSEC cannot be said to have waived valid service of process by virtue of
Campisi having filed a pro se answer or appearing at oral argument. See
Peterson v. Philadelphia Suburban Transp. Co., 255 A.2d 577 (Pa. 1969)
(person may become party to action by voluntarily entering appearance when
there has been improper service of process). As a non-attorney, Campisi was
not permitted to appear in court on behalf of a corporate entity, and the court
lacked jurisdiction to consider any pleading he filed on TSEC’s behalf. David
R. Nicholson, Builder, LLC, supra.
We are sympathetic to the frustration felt by both ECI and the court with
respect to the obfuscatory conduct of Mr. Campisi throughout the pendency
of this matter. It is apparent from the record that he has, at every turn, taken
actions to impede ECI’s valid efforts to collect on its judgment against the
Campisi Defendants. However, the Petitioners’ failure to properly join TSEC
as an indispensable party, as required by the Act and in accordance with the
Rules of Civil Procedure applicable to declaratory judgment actions, leaves us
with no option but to reverse the order of the trial court denying TSEC’s motion
to strike and vacate the declaratory judgment, and direct the trial court to
vacate the judgment. See Vale Chem. Co., supra; 42 Pa.C.S.A. § 7540.
Order reversed. Case remanded for vacatur of judgment. Jurisdiction
relinquished.
Judge Strassburger did not participate in the consideration or decision
of this matter.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/21
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