Burke, S. v. Tradex International & Duralux Finish ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SEAN BURKE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TRADEX INTERNATIONAL, INC. AND : No. 75 MDA 2020
DURALUX FINISH, INC. :
Appeal from the Order Entered December 17, 2019
In the Court of Common Pleas of Centre County Civil Division at No(s):
19-1183
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 17, 2021
Sean Burke (Appellant) appeals pro se from the order of December 17,
2019, sustaining the preliminary objections of Tradex International, Inc.
(Tradex) and Duralux Finish, Inc. (Duralux), dismissing Appellant’s motion to
strike preliminary objections as untimely, and dismissing Appellant’s
complaint. He also purports to appeal from a second order issued December
19, 2019, which denied his motion for an in camera review of a third party’s
medical records. We affirm in part, vacate in part, and remand.
Appellant filed the complaint on March 29, 2019, alleging several
common-law tort and product liability claims against Tradex and Duralux.
Complaint, 3/29/19, at 4-16. Appellant averred that he suffered psychological
injuries and emotional harm after ingesting human blood on his drinking cup
and food tray at SCI Rockview. Appellant alleged a fellow inmate, who was
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working as a dietary worker, cut himself on a defective cup (allegedly
manufactured by Duralux), causing a rubber glove (allegedly manufactured
by Tradex), to break, and resulting in the worker’s blood getting on several
cups and trays used by the inmates, including Appellant. Id. at 1-3.
Appellant served the complaint on Duralux on or about April 15, 2019.
On May 17, 2019, Appellant filed a notice of intent to praecipe to enter
judgment by default. That same day, counsel entered an appearance on
behalf of Duralux, and filed an answer and new matter.1 On July 1, 2019,
Appellant filed preliminary objections in the form of a motion to strike
Duralux’s answer and new matter as untimely.
Appellant had difficulty serving Tradex. A first attempt at service was
made on an address in Cleveland, Ohio. The Sheriff’s return indicates it was
marked, “Moved, Left no Address.” Sheriff’s Return of Service, 5/8/19. A
second attempt at service was made on an address in Fresno, California. The
Sheriff’s return indicates Tradex was not at the California address, and they
received a telephone call from someone who told them Tradex no longer
existed; the return concluded, “received certified mail return receipt back
without envelope, but it is not signed by anyone. Unsure if paperwork was
actually delivered.” Sheriff’s Return of Service, 6/20/19. Appellant had the
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1 Duralux countered Appellant was suing the wrong company. Duralux
averred it is a manufacturer of wood products, not plastic cups, and has no
relationship to the company that manufactures the cups. Answer and New
Matter, 5/17/19, at 6.
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complaint reissued on June 21, 2019. The complaint was ultimately served
on Tradex at an address in Elwood, Illinois on July 8, 2019. Sheriff’s Return
of Service, 7/11/19. On July 12, 2019, Appellant filed a notice of intent to
praecipe to enter judgment by default against Tradex. On July 29, 2019,
counsel for Tradex entered an appearance and filed preliminary objections in
the nature of a demurrer. Appellant filed preliminary objections in the form
of a motion to strike Tradex’s preliminary objections as untimely.
On October 21, 2019, Appellant filed a motion seeking in camera review
of a third party’s medical records, referencing as the third party, the dietary
worker who bled onto the eating utensils.
Oral argument on the motions took place on November 20, 2019. On
December 17, 2019, the trial court issued the following order, which reads in
pertinent part:
1. Defendant Tradex’s Preliminary Objections to Plaintiff’s
Complaint are SUSTAINED.
2. [Appellant]’s Preliminary Objections and or Motion to Strike
Defendant Tradex’s and/or its successor company’s Preliminary
Objections to the Complaint as untimely filed are OVERRULED.
3. [Appellant]’s Preliminary Objections and or Motion to Strike
Defendant Duralux Finish Inc.’s Answer to [Appellant]’s Complaint
and New Matter as untimely filed are OVERRULED.
4. [Appellant]’s Complaint is DISMISSED.
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Order, 12/17/20, at 1-2. Two days later, the court issued a separate order
denying Appellant’s motion for in camera review of a third party’s medical
records. This timely appeal followed.2
Appellant raises eight issues for our review:
[I.] Did the [trial] court abuse its discretion by failing to grant the
Appellant’s preliminary objections and or motion to strike the
preliminary objections of [Tradex] as untimely filed?
[II.] Did the [trial] court abuse its discretion by granting
[Tradex’s] preliminary objections based upon arguments not
raised within their asserted preliminary objections, contrary to
Rule 1032 (a) of the Pa. Rules of Civil Procedure, specifically the
argument of inadequate service of process of the complaint on
June 11, 2019, as substantiated by the Sheriff’s return of service
of June 20, 2019?
[III.] Did the [trial] court abuse its discretion by failing to consider
that a representative of [Tradex], and or its successor company,
namely a Mr. Mathew Brady, personally contacted Ms. Anna
Yecina of the Centre County Sheriff’s office on June 11, 2019,
regarding the service of the Appellant’s complaint?
[IV.] Did the [trial] court abuse its discretion by failing to grant
the Appellant’s preliminary objections and or motion to strike the
answer and new matter of [Duralux], incorporated as untimely
filed?
[V.] Did the [trial] court abuse its discretion by failing to consider
the documented exhibits presented which substantiated that
[Duralux] failed to timely serve their answer and new matter?
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2 Simultaneously with his notice of appeal, Appellant filed a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January
21, 2020, the trial court issued a three-page opinion, which contains
statements of fact which are not supported by the record. 1925(a) Opinion,
1/21/20, at 2-3.
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[VI.] Did the [trial] court abuse its discretion by failing to grant
the Appellant’s motion for in camera review of the laboratory test
results of [a third party], to determine if he in fact has tested
positive for any communicable blood diseases?
[VII.] Did the Prothonotary abuse its discretion when it failed to
enter default judgment against [Tradex], when they failed to
timely file their response to the complaint?
[VIII.] Did the Prothonotary abuse its discretion when it failed to
enter default judgment against [Duralux], when they failed to
timely file their answer to the complaint?
Appellant’s Brief at IX (unnecessary capitalization omitted).3
In his first issue, Appellant maintains the trial court erred in failing to
strike Tradex’s preliminary objections as untimely. Appellant’s Brief at 7-8.
We disagree.
Pennsylvania Rule of Civil Procedure 1026(a) provides “every pleading
subsequent to the complaint shall be filed within twenty days after service of
the preceding pleading. . . .” “However, this Rule has been interpreted as
permissive rather than mandatory. It is left to the sound discretion of the trial
court to permit a late filing of a pleading where the opposing party will not be
prejudiced and justice so requires.” Connor v. Crozer Keystone Health
Sys., 832 A.2d 1112, 1118 (Pa. Super. 2003) (citation omitted). “Service of
process is a mechanism by which a court obtains jurisdiction of a defendant,
and therefore, the rules concerning service of process must be strictly
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3 We reordered Appellant’s issues for ease of disposition.
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followed.” Trexler v. McDonald’s Corp., 118 A.3d 408, 412 (Pa. Super.
2019) (citation omitted).
Here, service was first attempted in April 2019. However, Appellant did
not provide the correct address and service was unsuccessful. Sheriff’s Return
of Service, 5/08/19. Service at a second address was next attempted in June
2019, and, based upon the certified mail receipt, which was unsigned, the
sheriff was unable to determine if the paperwork was delivered, and again, it
appeared the address Appellant provided was incorrect. Sheriff’s Return of
Service, 6/20/19. Ultimately, Tradex was served at a third address on July 8,
2019. Sheriff’s Return of Service, 7/11/19. Tradex filed preliminary
objections on July 29, 2019, the twentieth day.4
We are unpersuaded by Appellant’s assertion we should rely on the June
7, 2019 conversation between the Sheriff’s Office and a person named
Matthew Brady to find that service was perfected in June 2019. We have
reviewed the Sheriff’s Return of Service. It is not clear who Matthew Brady is
and what relationship, if any, he had with Tradex; it is also unclear whether
he was authorized to accept service on behalf of Tradex. The record only
indicates that Matthew Brady informed the Sheriff’s Department that the
California address did not belong to Tradex. Sheriff’s Return of Service,
6/20/19. This information is insufficient to demonstrate that service of
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4 July 28, 2019 was a Sunday.
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process occurred in June 2019. See Trexler, supra at 413-14 (finding
service of process improper where plaintiff could not show person who
accepted complaint was authorized to accept service on behalf of defendant).
Appellant’s actions in reissuing the complaint on June 21, 2019 and having
service sent to a different address, demonstrate his awareness Tradex had
not been served previously. Appellant’s first issue does not merit relief.
In his second issue, Appellant argues the trial court erred in granting
Tradex’s preliminary objections which resulted in dismissal of the complaint in
its entirety.5 Appellant’s Brief at 10-11. Upon review, we agree.
Our standard of review from the trial court’s order grant of preliminary
objections in the nature of a demurrer and dismissing Appellant’s complaint is
well-settled. We must:
determine whether the trial court committed an error of law.
When considering the appropriateness of a ruling on preliminary
objections, the appellate court must apply the same standard as
the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
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5 As noted above, Duralux did not file a brief. While Tradex filed a brief, it did
not address the grant of its preliminary objections, stating it did not perceive
Appellant to be challenging the grant of the preliminary objections, which
resulted in the dismissal of the complaint against both Duralux and Tradex.
Tradex’s Brief at 1, n.1. We disagree. While Appellant’s argument is not
artfully phrased, he does challenge the grant of preliminary objections
resulting in dismissal. Appellant’s Brief at 10-11. Moreover, given the errors
in the trial court’s opinion, and its failure to discuss why it granted the
preliminary objections, any confusion on the part of Appellant is
understandable.
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are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
Estate of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 305 (Pa.
Super. 2015) (citations omitted).
Instantly, we are unable to determine the basis for the trial court’s
dismissal of the complaint against Duralux. In its opinion, the trial court twice
states Duralux filed preliminary objections on July 29, 2019. Trial Ct. Op. at
2-3. This is incorrect. Tradex filed preliminary objections on July 29, 2019.
On July 30, 2019, Duralux filed a response to Appellant’s motion to strike
answer and counterclaim. Duralux could not file preliminary objections
because they filed an answer and new matter in May 2019. Thus, there is no
basis in the record for the trial court’s sua sponte dismissal of the complaint
against Duralux.
Tradex, on the other hand, did file preliminary objections in the nature
of a demurrer on July 29, 2019. Those preliminary objections did not raise a
claim of improper service; Tradex only challenged the legal sufficiency of
Appellant’s claims. Tradex’s Preliminary Objections to the Complaint,
7/29/19, at unnumbered page 1-11.
In its December 19, 2019 order, the trial court does not address why it
dismissed the complaint, and does not specify whether it dismissed the
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complaint with or without prejudice. We are unable to discern the basis of the
trial court’s dismissal of the complaint against Tradex. While the trial court
appears to acknowledge Tradex did not raise the issue of improper service in
its preliminary objections, the court also appears to imply it would not be an
abuse of its discretion for it to find improper service. Trial Ct. Op. at 2. At no
point does the court explain why it dismissed the complaint. Id. at 1-3.
Given that the trial court’s three-page opinion focuses on the service
issues, it is reasonable for Appellant to perceive that the court dismissed the
complaint based on improper service. If so, the court erred, because the
complaint was properly served on both parties. If not, the trial court should
have explained its reasons for concluding that the complaint was legally
insufficient, including its reasons for dismissing the complaint against Duralux
when Duralux never sought dismissal. See Pa.R.A.P. 1925(a) (“the judge who
entered the order . . . if the reasons for the order do not already appear of
record, shall . . . file of record at least a brief opinion of the reasons for the
order, or for the rulings . . . or shall specify in writing the place in the record
where such reasons may be found.”). We emphasize it is not this Court’s role
to guess why the trial court granted preliminary objections. We have
explained the purpose of a trial court opinion “is to provide the appellate court
with a statement of reasons for the order ... entered ... to permit effective and
meaningful review of the lower court decisions.” Commonwealth v. Hood,
872 A.2d 175, 178 (Pa. Super. 2005).
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Accordingly, on the record before us, we are constrained to conclude the
trial court’s dismissal of the complaint was improper, and vacate that portion
of the December 19, 2019 order.
In his third issue, Appellant states the trial court abused its discretion
by disregarding certain evidence concerning the service of the complaint on
Tradex. Appellant’s Brief at 12-13. Specifically, Appellant contends the trial
court ignored the June 20, 2019 Sheriff’s Return of Service and erred by not
allowing him to call Anna Yecina to testify about her telephone conversation
with Matthew Brady. Id.Initially, Appellant has failed to cite to the transcript to demonstrate he
sought to call Anna Yecina as a witness and the trial court denied his request.
It is not this court’s responsibility to comb through the record seeking the
factual underpinnings of Appellant’s claim. Commonwealth v. Mulholland,
702 A.2d 1027, 1034 n.5 (Pa. Super. 1997). Accordingly, we find this claim
waived.
In the absence of waiver, we note Appellant has failed to explain the
basis for his conclusion that Anna Yecina’s testimony was admissible. “The
Pennsylvania Rules of Evidence define ‘hearsay’ as an out of court statement
offered in court for the truth of the matter asserted. . . . Generally, hearsay is
inadmissible at trial unless it falls under an exception provided by the Rules.”
Carlinia v. Glenn O. Hawbaker, Inc., 219 A.3d 629, 640 (Pa. Super. 2019)
(citation omitted). Here, Appellant sought to have Anna Yecina testify to
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statements made by Matthew Brady, and sought to have them admitted for
the truth of matter asserted, which would be inadmissible hearsay. Thus,
Appellant’s third issue lacks merit.
In his fourth and fifth issues, Appellant avers the trial court erred in
failing to strike Duralux’s answer and new matter as untimely, and in
disregarding the exhibits which substantiated his claim. Appellant’s Brief at
8-9, 14-16. We disagree.
As recited above, we review this claim for an abuse of discretion.
Connor, supra at 1118. Here, it appears Duralux received the complaint on
or about April 15, 2019.6, 7 Thus, they had until May 6, 2019,8 to file their
answer and new matter. Counsel for Duralux entered his appearance and filed
an answer and new matter on May 17, 2019, some 11 days late; the same
day, Appellant filed his notice of intent to praecipe to enter judgment by
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6 It is not entirely clear when Duralux received the complaint. Appellant,
acting pro se, gave the complaint to prison officials for certified mailing on
April 8, 2019. Duralux is located in Colorado. The Sheriff mailed the complaint
by certified mail on or about April 22, 2019. The return card is undated, but
was mailed back to Appellant on April 15, 2019.
7 The trial court incorrectly found that Duralux was served on July 8, 2019.
Trial Ct. Op. at 2. Our review of the record, as described above, shows
Duralux was served with the complaint in April 2019 and filed an answer and
new matter in May 2019. However, “we are not limited by the trial court’s
rationale and we may affirm on any basis.” Blumenstock v. Gibson, 811
A.2d 1029, 1033 (Pa. Super. 2002), appeal denied, 828 A.2d 349 (Pa. 2003)
(citations omitted).
8 The twentieth day, May 5, 2019, was a Sunday.
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default against Duralux. Thus, it is evident Duralux did not file its answer and
new matter within the twenty days contemplated by Pa.R.Civ.P. 1026(a).
However, as we discussed in Connor, Rule 1026(a) should be interpreted, “as
permissive rather than mandatory.” Connor, supra at 1118. Appellant has
not explained how he was prejudiced by an eleven-day delay in the filing of
Duralux’s answer and new matter. Appellant’s Brief at 8-9. Moreover, given
Duralux’s claim Appellant sued the wrong company, justice militates in favor
of Duralux’s filing. Id. In sum, absent a showing of prejudice, see id. at
1118-19, we have no basis to find the trial court abused its discretion in
determining that Duralux timely filed its answer and new matter, and
overruling Appellant’s motion to strike. Id. at 1119 (affirming trial court’s
refusal to strike defendants’ preliminary objections as untimely where some
were filed months after filing of complaint, but plaintiff failed to demonstrate
prejudice). Appellant’s fourth and fifth issues lack merit.
In his sixth issue, Appellant asserts the trial court erred in failing to
grant his motion for in camera review of a third party’s medical records.
Appellant’s Brief at 17-19. Again, we disagree.
Our standard of review is as follows:
Orders regarding discovery matters are subject to the discretion
of the trial court. . . . An appellate court will not disturb discovery
orders without a showing of manifest, unreasonableness,
partiality, prejudice, bias, ill will, or such lack of support in the law
or record for the [trial court’s action] to be clearly erroneous.
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Hill v. Kilgallen, 108 A.3d 934, 941 (Pa. Super. 2015) (citations and
quotation marks omitted).
The factors which should be considered in deciding whether an
intrusion into an individual’s privacy is justified are the type of
record requested, the information it does or might contain, the
potential for harm in any subsequent nonconsensual disclosure,
the injury for disclosure to the relationship in which the record was
generated, the adequacy of safeguards to prevent unauthorized
disclosure, the degree of need for access, and whether there is an
express statutory mandate, articulated public policy, or other
recognizable public interest militating toward access.
Buckman v. Verazin, 54 A.3d 956, 961 (Pa. Super. 2012), appeal denied,
77 A.3d 1258 (Pa. 2013).
Appellant sought the medical records of the dietary worker whose blood
got on the eating utensils. Appellant does not allege he became infected with
a communicable disease as a result of this incident; in fact, he states he tested
negative for blood-borne diseases. Appellant’s Complaint at 1-3. In addition,
the issue of whether the bleeding individual had a communicable disease is
irrelevant with respect to the negligence and product liability claims against
Tradex and Duralux. Lastly, as Appellant had no idea at the time of the
incident whether the individual had a disease, the records are irrelevant to his
claims of emotional harm. The individual has a strong privacy right in his
records, and the trial court did not abuse its discretion in declining to violate
that right. See Lyke v. Yates, 77 A.3d 27, 32 (Pa. Super. 2013) (holding
trial court did not err in denying motion to compel disclosure of third-party
medical records, where patients have strong privacy interest in such records,
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and records were irrelevant to meeting burden of proof in negligence action
against doctor), appeal denied, 92 A.3d 812 (Pa. 2014); Buckman, supra at
964 (reversing trial court’s order granting motion to compel discovery of third-
party medical records). Appellant’s sixth issue does not merit relief.
Finally, in his seventh and eighth issues, Appellant argues the Centre
County Prothonotary erred in failing to enter default judgments against Tradex
and Duralux. Appellant’s Brief at 19-20. We disagree.
The Pennsylvania Rules of Civil Procedure provide:
The prothonotary, on praecipe of the plaintiff, shall enter
judgment against the defendant for failure to file within the
required time a pleading to a complaint which contains a notice to
defend or, except as provided by subdivision (d), for any relief
admitted to be due by the defendant's pleadings.
Note: See Rule 237.1 which requires the praecipe for
default judgment to contain a certification of written
notice of intent to file the praecipe.
Pa.R.Civ.P. 1037(b) and note. Our Rules of Civil Procedure further provide:
(2) No judgment of non pros for failure to file a complaint or by
default for failure to plead shall be entered by the prothonotary
unless the praecipe for entry includes a certification that a written
notice of intention to file the praecipe was mailed or delivered
****
(ii) in the case of a judgment by default, after the failure to
plead to a complaint and at least ten days prior to the date
of the filing of the praecipe to the party against whom
judgment is to be entered and to the party’s attorney of
record, if any.
****
(3) A copy of the notice shall be attached to the praecipe.
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(4) The notice and certification required by this rule may not be
waived.
Pa.R.Civ.P. 237.1(a)(2)(ii), (3) and (4).
“The interpretation and application of a Pennsylvania Rule of Civil
Procedure presents a question of law. Accordingly, to the extent that we are
required to interpret a rule of civil procedure, our standard of review is de
novo, and our scope of review is plenary.” Keller v. Mey, 67 A.3d 1, 5 (Pa.
Super. 2013) (citation omitted).
As discussed above, Appellant’s notice of intent to praecipe to enter
judgment by default against Tradex was premature, as he filed it on July 12,
2019, approximately four days after Tradex received the complaint, and
Tradex answered the complaint in a timely fashion. Thus, there was no basis
for Appellant’s notice of intent to praecipe to enter judgment by default, and
no basis for entry of default judgment. See Pa.R.Civ.P. 1037(b). Appellant’s
seventh issue does not merit relief.
As to Duralux, while Appellant’s notice of intent to praecipe to enter
judgment by default against Duralux was timely, Duralux filed a response
within the 10-day period. We explained above that we agree with the trial
court’s conclusion that the answer and new matter were timely. Also, while
Appellant filed the notice of intent, he never actually filed the praecipe to enter
judgment after the ten-day time period passed. Therefore, there was no basis
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for the Prothonotary to enter default judgment. See Pa.R.Civ.P. 1037(b).
Appellant’s eighth issue lacks merit.
Accordingly, for all of the above reasons, we affirm in part, vacate the
dismissal of the complaint, and remand for further proceedings consistent with
this decision.
Order affirmed in part and vacated in part. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2021
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