Alatrista, D. v. Diamond Club ( 2021 )

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2021 PA Super 236DIEGO ALATRISTA AND MERCEDES IN THE SUPERIOR COURT
GONZALEZ OF PENNSYLVANIA
Appellants
v.
DIAMOND CLUB; WAN REALTY, LLC,
INDIVIDUALLY AND D/B/A DIAMOND
CLUB; MARK FAIRCHILD, INDIVIDUALLY
AND D/B/A DIAMOND CLUB; AMATEUR
CREATIONS, INC., INDIVIDUALLY AND
T/D/B/A DIAMOND CLUB, WILLIAM
JOSEPH CICCONE, INDIVIDUALLY AND
D/B/A DIAMOND CLUB; NEKO CICCONE;
AND MICHAEL PRIMICH
Appellees No. 1327 MDA 2020
Appeal from the Order Entered September 15, 2020
In the Court of Common Pleas of Lackawanna County
Civil Division at No: 2020-CV-1087
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
OPINION BY STABILE, J.: FILED: DECEMBER 7, 2021
Appellants, Diego Alatrista and Mercedes Gonzalez, appeal from the
September 15, 2020 order sustaining the preliminary objections of Appellees,
Diamond Club; Wan Realty, LLC, Individually and d/b/a Diamond Club; Mark
Fairchild, Individually and d/b/a Diamond Club; Amateur Creations, Inc.,
Individually and t/d/b/a Diamond Club, William Joseph Ciccone, Individually
and d/b/a Diamond Club; Neko Ciccone; and Michael Primich. We reverse and
remand.
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Appellants filed their original complaint on February 12, 2020. They
alleged that, shortly before 2:00 a.m. on February 14, 2018, they arrived at
Diamond Club, (“the Club”) a strip bar in Old Forge, Lackawanna County.1
They were informed that the Club would close shortly, but that they could stay
until 2:30 for a $30.00 cover charge. Unable to pay, they decided to leave.
Appellee Michael Primich allegedly blocked the exit, demanded the cover
charge, and slammed Appellant Mercedes Gonzalez to the ground and tased
her when she tried to go around him. Appellant Diego Alatrista attempted to
aid Gonzalez but was tackled and tased by Appellees William Joseph Ciccone
and Neko Ciccone. Appellants allege that other employees of the Club
eventually joined the attack. The complaint alleged counts of assault and
battery, intentional infliction of emotional distress, and negligence arising out
of Appellants’ injuries. Appellants also alleged various dram shop act2
violations.
Appellees filed preliminary objections, and Appellants filed an amended
complaint on March 30, 2020. Appellees filed preliminary objections to the
amended complaint claiming, among other things, failure of a pleading to
conform to law, insufficient specificity, and legal insufficiency. Pa.R.C.P. No.
1028(a)(2), (3), (4). Regarding failure to conform to law, Appellees Diamond
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1 The recitation of facts in Appellants original and amended complaints is
substantially identical.
2 See 47 P.S. § 4-493.
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Club, WAN Realty LLC, and William Joseph Ciccone objected to Appellant’s
failure to include a verification with their complaint. Preliminary Objections of
Diamond Club, WAN Realty LLC, and William Joseph Ciccone, 3/12/20, at
¶¶ 37-40. Appellee Neko Ciccone also objected to the lack of a verification,
noting that the original complaint was a nullity and that the statute of
limitations3 had since expired, rendering an amendment futile. Preliminary
Objections of Neko Ciccone, 3/16/20, at ¶¶ 11-26.4
Appellants filed a verified, amended complaint on March 30, 2020
alleging the same causes of action. Appellees filed another round of
preliminary objections. Appellees Diamond Club, WAN Realty LLC, and William
Joseph Ciccone alleged that the amended complaint must be dismissed with
prejudice because, among other reasons, the original, unverified complaint
was a nullity, and the statute of limitations barred the amended complaint.
Preliminary Objections to Amended Complaint of Diamond Club, WAN Realty
LLC, and William Joseph Ciccone, 5/8/20, at ¶¶ 10-24. Appellee Neko Ciccone
raised a similar objection. Preliminary Objections of Neko Ciccone, 5/11/20,
at ¶¶ 13-27.
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3 There is no dispute that the two-year limitation, 42 Pa.C.S.A. § 5524,
applies in this case. Likewise, there is no dispute that Appellants’ original
complaint was timely, and the amended complaint is not.
4 The remaining named defendants did not file responsive pleadings.
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On September 15, 2020, the trial court entered the order on appeal,
sustaining Appellees’ preliminary objections. The trial court noted that a
statute of limitations defense is ordinarily a matter for a new matter. Trial
Court Opinion, 9/15/20 at 6 n.4; Pa.R.C.P. No. 1030(a). But because the
applicability of the statute was clear from the face of the pleadings, and
because Appellants did not file preliminary objections to Appellees’ preliminary
objections,5 the trial court dismissed Appellants’ complaint. Appellants filed
this timely appeal, arguing the trial court erred in sustaining Appellees’
preliminary objections.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. The impetus of our inquiry is to determine the
legal sufficiency of the complaint and whether the pleading would
permit recovery if ultimately proven. This Court will reverse the
trial court’s decision regarding preliminary objections only where
there has been an error of law or abuse of discretion. When
sustaining the trial court’s ruling will result in the denial of [a]
claim or a dismissal of suit, preliminary objections will be
sustained only where the case is free and clear of doubt.
Caldwell v. Kriebel Res. Co., LLC, 72 A.3d 611, 614 (Pa. Super. 2013),
appeal denied, 81 A.3d 74 (Pa. 2013). The Rules of Civil Procedure require
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5 We follow the trial court in this respect. Because Appellants did not file
preliminary objections to Appellees’ preliminary objections, we do not address
the propriety of sustaining a preliminary objection based on failure to conform
to law even though the underlying issue was the statute of limitations. We
conclude the trial court erred regardless of the distinction between Rules 1029
and 1030.
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a complaint to be verified. Pa.R.C.P. No. 1024. Verified “means supported by
oath or affirmation or made subject to the penalties of 18 Pa.C.S.A. § 4904
relating to unsworn falsification to authorities.” Pa.R.C.P. No. 76.
The trial court reasoned that the total absence of a verification was fatal
to Appellant’s complaint. We recognize that the complaint was a nullity, in
the sense that Appellees had no obligation to respond, and that any default
judgment arising from the complaint could have been stricken. But the only
question here is whether an unverified complaint is sufficient to satisfy the
statute of limitations. The Rules of Civil Procedure are to be construed liberally
to affect a just result. See Pa.R.C.P. No. 126 (“The rules shall be liberally
construed to secure the just, speedy and inexpensive determination of every
action or proceeding to which they are applicable. The court at every stage
of any such action or proceeding may disregard any error or defect of
procedure which does not affect the substantial rights of the parties.”).
In Lewis v. Erie Ins. Exch, 421 A.2d 1214 (Pa. Super. 1980), the trial
court dismissed an arbitration petition because the party’s attorney signed the
verification under circumstances not in accord with Rule 1024(c). This Court
reversed, reasoning that “[t]he Rules of Civil Procedure are designed to
achieve the ends of justice and are not to be accorded the status of
substantive objectives requiring rigid adherence […] courts should not be
astute in enforcing technicalities to defeat apparently meritorious claims.” Id.
at 1217. This Court further noted that the error was of a “de minimus
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technical nature that did not prejudice the substantive rights of [the
defendant].” Id. We added that, “although we will not enforce a
hypertechnical reading of these rules, we will not condone willful
noncompliance.” Id. at 1217 n. 3.
Lewis relied on Monroe Contract Corp. v. Harrison Sq, 405 A.2d 954(Pa. Super. 1979), wherein the plaintiff obtained a judgment after the
defendant failed to file an answer to its complaint. The defendant filed a
petition to open or strike the default judgment, and the petition was verified
by counsel. Id.at 956. The trial court dismissed the defendant’s petition,
concluding counsel’s verification was improper, and that the faulty verification
deprived the court of jurisdiction. Id. at 956-57. This Court, after holding
that Rule 1024 governs the form of petitions, concluded that the error was de
minimus because the verification recited only that the petitioner was without
sufficient “knowledge” to make a verification, rather than “knowledge and
information” as per the language of Rule 1024(c). Id. at 958. “Verification is
necessary to defend a party against spurious allegations; it must not be
transformed into an offensive weapon designed to strike down an otherwise
valid petition.” Id. “Thus, at a bare minimum, a court confronted by a
defective verification should grant leave to amend before dismissing the
petition.” Id. at 959. The Monroe Court noted that its holding implicitly
rejected the view that a deficient verification raises a question of jurisdiction.
Id. at 959 n.5.
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The trial court distinguished Lewis and Monroe because those cases
dealt with a defective verification rather than the omission of one. Thus,
rather than commit a de minimus technical error, the trial court found that
Appellants totally failed to comply with Rule 1024. The trial court also noted,
as we explained above, that the law treats an unverified complaint as a nullity.
The trial court is correct in these respects, but we nonetheless disagree with
the court’s assessment of the implications. Nowhere does the trial court
identify any prejudice to Appellees resulting from the unverified complaint.
We observe that the Rules of Procedure allow for the commencement of
an action by writ of summons. Pa.R.C.P. No. 1007. Per Rule 1351, governing
the form of a writ of summons, the writ need only identify the parties and
notify the named defendants that the named plaintiffs have commenced an
action against them. Pa.R.C.P. No. 1315. The filing of a writ of summons and
a good faith effort to effectuate its service on the defendant is sufficient to toll
the statute of limitations. Sayers v. Heritage Valley Medical Grp., Inc.,
247 A.3d 1155, 1161 (Pa. 2021). A writ does not require a verification. It
therefore would seem incongruent for a timely filed complaint not to effectuate
the same tolling as a writ, especially where the absence of a verification easily
can be cured by amendment.
Here, Appellants clearly placed Appellees on notice, within the two-year
limitations period, of the commencement of an action against them.
Furthermore, there is nothing in the record to support a conclusion that
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Appellants’ noncompliance with Rule 1024 was willful, rather than a mere
oversight. The absence of the verification did not prejudice Appellees or affect
any of their substantial rights. Further, even though an unverified pleading is
a nullity,6 this is not a case in which a plaintiff proceeded to default judgment
based on an unverified, unanswered complaint. The only question before us
is whether Appellants’ original filing was sufficient to satisfy the two-year
statute of limitations for commencement of an action. Given that the Rules of
Procedure allow a simple writ of summons for that purpose, we answer in the
affirmative. In concluding otherwise, the trial court permitted an apparent
oversight—one involving no apparent willful misconduct on the part of
Appellants, and resulting in no discernible prejudice to Appellees—to defeat
Appellants’ causes of action in their entirety. Under Rule 126 and the
principles set forth in Lewis and Monroe, we concluded the trial court erred.
The lack of a verification to Appellants’ complaint was a technical defect that
easily could be cured by amendment. See Pa.R.C.P. No. 1028(c)(1) (a party
may file an amended pleading as of course within twenty days after service of
a copy of preliminary objections).
For the foregoing reasons, we reverse the order sustaining Appellees’
preliminary objections and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
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6 Avery v. Cercone, 225 A.3d 873, 882 (Pa. Super. 2019).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/07/2021
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