Allen, J. v. Herr, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES ALLEN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
APRIL HERR : No. 2310 EDA 2020
Appeal from the Order Entered October 27, 2020
In the Court of Common Pleas of Chester County Civil Division at No(s):
No. 2019-08956-TT
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 16, 2021
James Allen (“Plaintiff”) appeals from the order dismissing his action
pursuant to Pennsylvania Rule of Civil Procedure 1032(b). We vacate and
remand.
Plaintiff commenced this action against April Herr (“Defendant”) by
praecipe to issue a writ of summons on September 4, 2019. He reissued the
writ in October 2019. The Sheriff attempted to serve Defendant on October 4,
2019, but was unable to locate her at the address provided. Plaintiff then
reissued the writ two more times. The Sheriff again attempted service on
December 2, 2019, but was again unable to locate Defendant at the address
provided. Plaintiff then reissued the writ 11 more times. He made no further
attempts to serve Defendant and did not file a motion for alternate service.
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* Former Justice specially assigned to the Superior Court.
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In Chester County, a matter is “presumptively deemed ready for trial
twelve (12) months from the date of the initiation of the suit.” Chester Cnty.
L.R.C.P. 249.3(a). The Rule further provides that immediately after the matter
is deemed trial ready it shall “be placed on the trial list of the judge to whom
the case is assigned, unless prior thereto an order has been entered deferring
the placement on the trial list until a later date.” Id. The Rule also provides
that a party may obtain relief from the automatic listing by filing a request for
an administrative conference, specifying that the party will seek a trial
deferment. Chester Cnty. L.R.C.P. 249.3(b).
Pursuant to this Rule, in February 2020, the trial court sent a reminder
letter to Plaintiff stating trial would be in September 2020 and subsequently
placed the matter in the September trial pool list. In October, the case was
listed for trial, with notice sent via letter and by email. Plaintiff did not file a
motion for an administrative conference and deferment or for a continuance.
At the date set for trial, Plaintiff appeared with counsel. The court noted
the writ had been re-issued 14 times, with no attempts of service since
December 2019, and asked if counsel was prepared to go to trial. N.T.,
10/26/20, at 2. Counsel responded:
Sure. Judge, there’s no Complaint. There’s no defendant.
I’m always ready to go[] to trial, but the docket clearly
indicates that that’s impossible. I don’t know why the Court
summoned me here to try the case when there’s no
Complaint and no defendant, but I’m here. I’m always ready
to go to trial. My case is not.
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Id. at 2-3. The court then asked why counsel had not effectuated service of
the complaint. Counsel responded: “Well, there’s this thing that happened,
Judge. Maybe it didn’t happen in Chester County, but there’s this pandemic
that closed the world down for several months.” Id.1 at 3. Following a heated
exchange, the court stated it was dismissing the case. See id. at 3-4. The
court then issued an order dismissing the action. Order, dated Oct. 27, 2020.
The court provided the following reasons:
Counsel for Plaintiff appeared and confirmed to the Court
that his case was not ready for trial. He has never made a
request for a trial continuance or for alternative service of
the writ. There has been no good faith attempt to effectuate
service of the writ since December 12, 2019. Plaintiff was
admittedly not ready to proceed to trial when called and
would otherwise be subject to a judgment of non pros
pursuant to Pa.R.C.P. 218(a). However, since there have
been no reasonable efforts since December 12, 2019 at
service of the writ, Plaintiff deprived the Court of
jurisdiction. Therefore, this action is dismissed pursuant to
Pa.R.C.P. 1032(b) since it is ready for trial but the Court
does not have requisite personal jurisdiction.
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1 In March 2020, due to the COVID-19 pandemic, the Pennsylvania Supreme
Court declared a judicial emergency and ordered Pennsylvania courts closed
to the public as to non-essential functions. Order, dated Mar. 18, 2020. In a
supplemental order, the Supreme Court clarified that essential functions
included the commencement of a civil action by praecipe for a writ of
summons, but that “related procedural rules, including rules regarding service
of original process, are suspended.” Order, dated Mar. 24, 2020. The Supreme
Court ceased the statewide judicial emergency as of June 1, 2020, but
permitted president judges to file a declaration of an emergency in their
district. Order, dated May 27, 2020. Chester County entered an order stating
that “[a]ll functions of the common pleas and magisterial district courts shall
be fully restored” as of June 2, 2020, and stating jury trials would begin no
sooner than August 3, 2020. Amendment to Administrative Order No. 9-2020,
dated May 13, 2020.
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Id. at 1 n.2. Plaintiff filed a timely notice of appeal.
Plaintiff raises the following issues:
1. Did the Court err by applying a local . . . trial readiness
rule under the circumstances, to dismiss this action for lack
of prosecution, without a hearing or issuing a rule to show
cause, or any notice of intent in violation of Pa.R.C.P. 237.1
and Pa.R.C.P. 1037?
2. Did the Court err by not permitting counsel any latitude
to explain the legitimate reasons why the Defendant was
not served?
Plaintiff’s Br. at 4 (suggested answers omitted).
In his first argument, Plaintiff argues the court erred when it called the
matter under a local trial readiness rule even though for the previous six
months the courts were operating under pandemic conditions. He contends
that for four and a half months courts were operating on a limited basis and
the parties and counsel were under stay-at-home orders. Plaintiff notes that
under Rules 237.1 and 1037, a matter may be dismissed for lack of
prosecution, but only after the plaintiff is provided notice of intent to dismiss
and an opportunity to cure. He argues that the court erred in dismissing the
case under a local trial readiness rule, without consideration of Rules 237.1
and 1037.
This claim lacks merit. As noted above, Chester County deems cases
ready for trial 12 months after initiation of the matter and, unless a deferment
is entered on the docket, places the matter on the trial judge’s trial pool list.
Chester Cnty. L.R.C.P. 249.3(a). The court did not err in applying its local rule
to set a trial date, particularly as the Rule allows a party to seek a deferment
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of the trial date if the party is not ready. See Chester Cnty. L.R.C.P. 249.3.
Further, although the court listed the case for trial pursuant to a local trial
readiness rule, it did not dismiss the case under that rule. Rather, it dismissed
the case under Rule 1032(b) for lack of jurisdiction. Rules 237.1 and 1037 are
not implicated when the court dismisses a case under Rule 1032(b).
In his second claim, Plaintiff notes that the court opined in its Rule
1925(a) opinion that it dismissed the case for lack of jurisdiction. Plaintiff
agrees that a trial cannot proceed unless a defendant has been served, but
argues dismissal is not required in this case. He claims “[t]he trial court []
refused to acknowledge the obvious point that the pandemic in itself had
affected counsel’s ability to accomplish service,” noting a statewide order
suspended personal service from March 24, 2020 through May 31, 2020, and
that many counties, including Philadelphia, where counsel’s office is located,
had restrictions even after June 1. Plaintiff’s Br. at 16. He asserts that the
return of service forms from October and December 2019 indicate the
defendant could not be located and that “with COVID restrictions,” locating
the defendant was a more difficult task “for at least some portion of the time
that had elapsed since the matter was filed.” Id. He argues it was error for
the court not to consider the surrounding circumstances before sua sponte
raising an issue regarding lack of subject matter jurisdiction. Id. at 17.
The trial court dismissed the case under Rule 1032(b), which provides:
(b) Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject
matter or that there has been a failure to join an
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indispensable party, the court shall order that the action be
transferred to a court of the Commonwealth which has
jurisdiction or that the indispensable party be joined, but if
that is not possible, then it shall dismiss the action.
Pa.R.C.P. 1032(b). The court reasoned that dismissal under this Rule was
proper because it lacked personal jurisdiction over the defendant. Order,
dated Oct. 27, 2020, at 1 n.2.
We do not agree that Rule 1032(b) applies. Rule 1032(b) deals with
situations where the court lacks subject matter jurisdiction or an indispensable
party has not been joined. The failure to serve the defendant implicates the
court’s personal jurisdiction, not its subject matter jurisdiction. Cintas Corp.
v. Lee’s Cleaning Serv. Inc., 700 A.2d 915, 917-18 (Pa. 1997). Further,
although a case cannot proceed without the defendant, that does not make a
defendant an “indispensable party,” as contemplated by the Rule. We have
noted that the failure to join an indispensable party “implicates the trial court’s
subject matter jurisdiction,” and stated that an “indispensable party” includes
those whose “rights are so connected with the claims of the litigants that no
decree can be made without impairing those rights.” Belliveau v. Phillips,
207 A.3d 391, 397 (Pa.Super. 2019) (citation omitted) (alteration in original).
This definition does not encompass a defendant. We therefore conclude that,
as the court had subject matter jurisdiction, dismissal under Rule 1032(b) was
not proper.
The trial court suggests that we may affirm on the alternative basis that
the matter “would otherwise be subject to a judgment of non pros pursuant
to Pa.R.C.P. 218(a).” 1925(a) Op., filed Feb. 9, 2021, at 4 and n.7. Rule
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218(a) permits a court to enter a judgment of non pros on its own motion
“[w]here a case is called for trial, if without satisfactory excuse a plaintiff is
not ready[.]”
We decline the trial court’s invitation to affirm on this basis. See
Pa.R.C.P. 218, Note (stating “a judgment of non pros is subject to the filing of
a petition under Rule 3051 for relief from a judgment of non pros”); Pa.R.C.P.
3051 (providing that “[r]elief from a judgment of non pros shall be sought by
petition”).
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2021
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