Yampolsky Mandeloff v. Liberties Lofts, LLC ( 2017 )


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  • J-A02043-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    YAMPOLSKY, MANDELOFF, SILVER, RYAN                  IN THE SUPERIOR COURT OF
    & CO.                                                     PENNSYLVANIA
    v.
    PETER ECONOMOU AND 249-251 2ND
    STREET ASSOCIATES, LLC: BELMONT
    PROPERTIES, INC. CHE SAN
    PROPERTIES, LLC: E.M.M. DEVELOPERS,
    LLC: FSD 1515 LLC: FSD URBAN
    DEVELOPERS, LLC: LANSDALE HOLDING
    GROUP, LLC: LANSDALE HOLDING
    GROUP ASSOCIATES, LP: LIBERTIES
    LOFTS TENANT, LP: LIBERTIES LOFTS,
    LLC: MARATHON DESIGN &
    CONSTRUCTION, LLC: PHOENIX, LLC
    APPEAL OF: LIBERTIES LOFTS, LLC                           No. 25 EDA 2016
    Appeal from the Judgment December 10, 2015
    in the Court of Common Pleas of Philadelphia County Civil Division
    at No(s): July Term, 2011, No. 01809
    BEFORE: OTT, RANSOM, AND FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                              FILED JUNE 21, 2017
    Appellant   Liberties   Lofts,   LLC   appeals   from   the   judgment   of
    $21,955.18 entered in the Philadelphia Court of Common Pleas in favor of
    Appellee Yampolsky, Mandeloff, Silver, Ryan & Co. after a non-jury trial.
    Appellant argues, inter alia, that the trial court abused its discretion by
    permitting Appellee to introduce evidence that other judges on the same
    court precluded in prior orders. We are constrained to conclude that the trial
    court did not enter a final order due to Appellee’s failure to serve multiple
    *
    Former Justice specially assigned to the Superior Court.
    J-A02043-17
    defendants other than Appellant with original process.         Accordingly, we
    quash this appeal.
    This case has a tangled history. In June 2011, Appellee, an accounting
    firm, filed this action against Appellant and eleven other defendants 1 alleging
    their failure to pay fees owed for accounting services. The trial court docket
    indicates that Appellant was the only defendant served with original process.
    The trial court placed this case into the compulsory arbitration
    program. On May 2, 2012, Appellant filed a motion to compel depositions of
    several employees of Appellee.       In an order dated May 18, 2012, the
    Honorable Sandra Mazer Moss granted Appellant’s motion and required eight
    employees of Appellee to appear for deposition, including Alan Mandeloff,
    CPA, and Terry Silver, CPA, a partner in Appellee’s firm. Order, 5/18/12.
    The case proceeded to arbitration without further discovery.        In an
    award docketed on June 20, 2012, the arbitration panel found in favor of
    Appellee and against Appellant in the amount of $16,001.50. On July 10,
    2012, Appellant filed a de novo appeal to the court of common pleas from
    the arbitration award.
    On September 27, 2012, the trial court entered another order
    requiring Appellee’s employees to appear for deposition.       On October 26,
    2012, Appellant filed a motion seeking summary judgment on the ground
    1
    As discussed below, one of the unserved defendants was Liberties Lofts
    Tenants, LP (“Tenants”).
    -2-
    J-A02043-17
    that Appellee failed to produce Silver and Mandeloff for depositions.     Mot.
    For Summ. J., 10/26/12, at ¶¶ 10-13.          On December 10, 2012, the
    Honorable Leon Tucker entered summary judgment in favor of Appellant.
    Order, 12/10/12. On December 26, 2012, Appellee appealed to this Court.
    On September 26, 2013, a panel of this Court reversed the order
    granting summary judgment against Appellee and remanded for further
    proceedings.   See Yampolsky v. Economou, 122 EDA 2013 (Pa. Super.,
    Sep. 26, 2013) (unpublished memorandum). The panel held that the entry
    of judgment in favor of Appellant constituted an abuse of discretion, because
    the record did not support a finding that Appellee’s noncompliance with the
    discovery order was willful or committed in bad faith.        
    Id. at 5.
       We
    instructed that the trial court on remand could impose “other, more
    appropriate sanctions as it sees fit to ensure [Appellee’s] future compliance”
    but found the “entry of summary judgment in [Appellant’s] favor was too
    severe a sanction based the evidence of record.” 
    Id. at 6.
    Upon remand, on November 4, 2013, Judge Tucker found that
    Appellee failed to comply with the September 27, 2012 discovery order. The
    court entered an order “preclud[ing Appellee] from offering evidence or
    testimony as to liability and/or damage at [a]rbitration and/or at trial.”
    Order, 11/4/13.
    On September 30, 2014, the case proceeded to trial before the
    Honorable Idee Fox. Pursuant to Judge Tucker’s November 4, 2013 order,
    -3-
    J-A02043-17
    Judge Fox precluded Appellee from presenting testimony and granted
    Appellant’s motion for nonsuit. On November 10, 2014, however, the court
    granted Appellee’s post-trial motions and ordered a new trial on the ground
    that Judge Tucker’s order conflicted with this Court’s decision at 122 EDA
    2013.
    In January 2015, Silver’s and Mandeloff’s depositions took place. On
    August 10, 2015, the matter proceeded to a non-jury trial. The trial judge
    entered a decision in favor of Appellee and against Appellant in the amount
    of $15,074.00 plus interest in the amount of $6,881.18. The trial judge also
    found in favor of Appellee and against Tenants, one of the unserved
    defendants, in the amount of $10,623.14.      The trial judge found against
    Appellee as to the remaining defendants. Appellant filed post-trial motions,
    which the trial judge denied.    On December 10, 2015, Appellee entered
    judgment on the decision.    On December 21, 2015, Appellant appealed to
    this Court. Appellant and the trial court complied with Pa.R.A.P. 1925.
    In this appeal, Appellee raises numerous issues assailing the trial
    proceedings. Appellant’s Brief at 2-3. Before we may address Appellant’s
    arguments, we must first determine whether we have jurisdiction over its
    appeal. Although neither party has raised this issue, this Court may raise
    issues regarding our jurisdiction sua sponte. See Estate of Considine v.
    Wachovia Bank, 
    966 A.2d 1148
    , 1511 (Pa. Super. 2009).
    -4-
    J-A02043-17
    In this case, the trial judge entered a decision (1) against one
    defendant served with original process, (2) against another defendant not
    served with original process, and (3) in favor of multiple defendants who
    were not served with original process.        The trial court, however, lacked
    jurisdiction over all defendants who were not served with original process,
    i.e., all defendants except for Appellant.     See Bloome v. Alan, 
    154 A.3d 1271
    , 1274 (Pa. Super. 2017).        As a result, there is no final order in this
    case, thus depriving us of jurisdiction over this appeal.
    “The rules relating to service of process must be strictly followed, and
    jurisdiction of the court over the person of the defendant is dependent upon
    proper service having been made.” Sharp v. Valley Forge Medical Center
    and Heart Hospital, Inc., 
    221 A.2d 185
    , 187 (Pa. 1966). Absent service
    of original process, the trial court cannot enter judgment against the
    defendant. See 
    Bloome, 154 A.3d at 1274
    & n. 8. In Bloome, the plaintiff
    failed to serve original process upon two defendants named in her writ of
    summons and two of the six defendants named in her amended complaint.
    Several defendants whom the plaintiff served with process filed preliminary
    objections, and the trial court sustained the preliminary objections and
    dismissed the amended complaint. We quashed the plaintiff’s appeals 2 from
    2
    The plaintiff filed four appeals from the order of dismissal. 
    Id. at 1271
    n.1.
    -5-
    J-A02043-17
    the order of dismissal because it was not a final order under Rule
    341(b)(2).3 We reasoned:
    [T]here is no indication from the record that [the
    a]ppellant   served    the   amended    complaint   upon
    Edwardsville Apartments Management, LLC, or Eagle Ridge
    Apartments, Inc. Furthermore, these parties did not file
    preliminary objections, have not been dismissed from this
    matter, and [the a]ppellant has not discontinued her case
    against them.
    Accordingly, until [the a]ppellant obtains the trial
    court’s determination of finality, acquires this Court’s
    permission to appeal per Chapter 13 of the appellate rules,
    or obtains leave of court to discontinue her case pending
    against various parties, we lack jurisdiction to entertain
    the appeals as filed.
    
    Id. at 1274
    (footnotes omitted). In a footnote, we added:
    [The a]ppellant filed a writ of summons against Alan
    Morris (or Morris Alan) and Hillside Gardens, LTD.;
    however, she failed to effectuate proper service of the writ,
    thus depriving the trial court of personal jurisdiction over
    3
    Pa.R.A.P. 341 provides in relevant part:
    (a) General rule. Except as prescribed in subdivisions
    (d), and (e) of this rule, an appeal may be taken as of
    right from any final order of [a] . . . lower court.
    (b) Definition of final order. A final order is any order
    that:
    (1) disposes of all claims and of all parties; or
    (2) RESCINDED
    (3) is entered as a final order pursuant to subdivision (c)
    of this rule.
    
    Id. Under Rule
    341(b)(3) and (c), an otherwise non-final order becomes
    final and appealable when the trial court certifies that an immediate appeal
    will facilitate resolution of the entire case. 
    Id. -6- J-A02043-17
    them. See Cahill v. Schults, [] 
    643 A.2d 121
    ([Pa.
    Super.] 1994). Moreover, [the a]ppellant failed to name
    either party as a defendant in any ensuing complaint and,
    more particularly, [the a]ppellant did not include either
    party as a defendant in the amended complaint. Thus,
    there are no claims pending against them. See Brooks v.
    B & R Touring Co., 
    939 A.2d 398
    (Pa. Super. 2007) . . .
    Therefore, the trial court is directed to determine whether
    these parties should be stricken from this matter.
    
    Id. at 1274
    n.8. In another footnote, we stated:
    Appellant makes no argument that the [] order [of
    dismissal] is expressly defined by statute as a final order.
    Likewise, she does not qualify the order on appeal as
    interlocutory as of right or collateral to the main cause of
    action. See Pa.R.A.P. 311; 313. Rather, she mistakenly
    suggests she is appealing from a final order, which
    dismissed all parties and all claims.
    
    Id. at 1274
    n.7.
    Bloome teaches that the trial court must have jurisdiction over all
    defendants in order to enter a final order.    Here, Appellee failed to serve
    original process on eleven of the twelve defendants named in Appellee’s
    complaint. The unserved defendants did not file responsive pleadings, were
    never dismissed, and Appellee never discontinued its action against them.
    Thus, the trial court lacked jurisdiction over the unserved defendants, so it
    did not enter a final disposition as to “all claims and . . . all parties.”
    Pa.R.A.P. 341(b)(1). Because there is no final, appealable order in this case,
    we quash this appeal.4
    4
    For the same reason, the prior decision of this Court at 122 EDA 2013 is a
    nullity as well. While it is unusual for us to declare a prior decision of this
    -7-
    J-A02043-17
    Appeal quashed.
    Judge Ransom joins the Memorandum.
    Judge Ott files a Dissenting Statement.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/21/2017
    Court null and void, it lies within our authority to do so, for “a judgment may
    be attacked for lack of jurisdiction at any time, as any such judgment or
    decree rendered by a court that lacks subject matter or personal jurisdiction
    is null and void.” Bell v. Kater, 
    943 A.2d 293
    , 298 (Pa. Super. 2008)
    (citation omitted).
    -8-
    

Document Info

Docket Number: Yampolsky Mandeloff v. Liberties Lofts, LLC No. 25 EDA 2016

Filed Date: 6/21/2017

Precedential Status: Precedential

Modified Date: 6/21/2017