A. Blewitt v. J. Doe

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Blewitt, :
Appellant :
:
v. :
: No. 1483 C.D. 2019
John Doe : Argued: November 12, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.)
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: January 6, 2021
Anthony Blewitt appeals from the order of the Court of Common Pleas
of Chester County (trial court) denying his amended motion to compel documents
from the Chester County Department of Emergency Services (Department) and
dismissing with prejudice the action he commenced by way of writ of summons
against John Doe. Upon review, we vacate.
On December 13, 2018, Mr. Blewitt commenced a civil action pro se
by way of writ of summons in the trial court. Reproduced Record (R.R.) at 3a-5a.
The writ listed the sole defendant as John Doe, address unknown, with no indication
of the nature of the potential claims. Id. The cover sheet did not indicate whether
the nature of the case was in tort or a civil appeal from an administrative agency; the
“miscellaneous” option “other” was checked without any description in the available
1
The decision in this case was reached prior to January 4, 2021, when Judge Brobson
became President Judge.
area for explanation. Id. Relevant to this appeal, at no time since commencing his
action via the unspecified writ of summons did Mr. Blewitt advance his case by
serving the writ on any person or entity, filing a praecipe with the Prothonotary to
have the writ reissued, or filing a complaint setting forth the nature of his claims.
On January 18, 2019, Mr. Blewitt served a subpoena on Heather
DeStefano of the Department, seeking production of documents. Id. at 6a. The
subpoena requested documents – including 911 call logs, recordings, transcripts,
computer aided dispatch (CAD) reports, and a listing of dispatched personnel and/or
departments – related to a motorcycle accident that occurred on June 15, 2007, in
which Mr. Blewitt’s son was killed. Id. at 9a. Mr. Blewitt attached to his subpoena
documentation of his previous similar efforts to obtain information from the County
about the accident, including a May 15, 2015, letter from the Chester County
Solicitor’s Office in response to his records request filed pursuant to the Right-to-
Know Law2 (RTKL). Id. at 11a. That letter provided a redacted 911 call log from
the evening of the accident and stated that “any other information would have to be
accompanied by a [s]ubpoena” in order to be released. Id.
By letter dated February 7, 2019, the Chester County Solicitor’s Office
“decline[d] to comply” with Mr. Blewitt’s January 2019 subpoena. R.R. at 13a. The
letter stated that in 2015-16, Mr. Blewitt submitted numerous requests to various
Chester County departments and agencies seeking documents related to the 2007
accident, and that the Chester County Solicitor believed the present action was “a
pretense to obtain records which either have already been provided to you [Mr.
Blewitt] or are legally exempt from disclosure.” Id. Moreover, the letter stated that
by the time Mr. Blewitt filed his writ of summons in December 2018, any claims
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
stemming from the June 2007 accident were beyond the two-year statute of
limitations for civil actions. Id.
According to the trial court docket, Mr. Blewitt did not act again on his
cause of action until June 14, 2019, when he filed in the trial court a motion to
produce documents stating that he had been requesting all 911 calls made concerning
the 2007 accident and asking for unspecified action on the Department’s response to
his January 2019 subpoena. R.R. at 1a-2a, 10a. On July 9, 2019, the trial court
denied the motion without prejudice, explaining that a certificate of service was
needed. Id. at 15a.
On September 5, 2019, Mr. Blewitt, still proceeding pro se, filed an
“Amended Motion to Compel Production of Documents” (with proper service
information) reiterating his request that the trial court order the Department to
comply with the January 2019 subpoena. Id. at 19a. Mr. Blewitt asserted that in
response to his 2015 requests, he received a 911 call log from the date of the
accident, but that it was “all redacted,” and that he never received an explanation
why his requests for more information had been denied. Id. at 19a-21a.
On September 18, 2019, the trial court issued an order denying Mr.
Blewitt’s amended motion and dismissing his action against John Doe in its entirety
and with prejudice. R.R. at 26a. A footnote in the trial court’s order indicates that
Pennsylvania Rule of Civil Procedure (Pa.R.C.P.) No. 2005(b) (Rule 2005(b)) does
not authorize use of a John Doe designation for a defendant in an action commenced
by writ of summons.3 Id.
3
While Rule 2005 provides the circumstances under which a plaintiff may use a “Doe”
designation for an unknown defendant, the note to the Rule specifically states: “This rule does not
authorize use of a Doe designation in an action commenced by a writ of summons.” Pa.R.C.P.
No. 2005 & Note.
3
Mr. Blewitt, now represented by counsel, appealed to this Court, and
the trial court issued an opinion dated December 11, 2019. Trial Ct. Op., 12/11/19,
at 1; R.R. at 56a-57a. In its opinion, the trial court first acknowledged that its
dismissal of Mr. Blewitt’s action on the basis of Rule 2005(b) was in error because
“[Mr. Blewitt] commenced the action prior to the effective date of Rule 2005, and at
the time of the filing of the action, the Rules of Civil Procedure were silent as to the
propriety of initiating an action against a ‘John Doe’ by writ of summons.”4 Trial
Ct. Op., 12/11/19, at 1; R.R. at 56a. The trial court concluded, however, that its error
was harmless because any action Mr. Blewitt could have brought based on either his
son’s fatal accident in 2007 or his RTKL requests of 2015 would, on its face, be
time-barred by the time he commenced this action in 2018. Id.
On appeal,5 Mr. Blewitt argues6 that the trial court erred in sua sponte
dismissing his cause of action based on Rule 2005(b) and alternatively applying the
doctrine of harmless error since there is no record here upon which to consider
whether his action is barred by statute of limitations strictures. He argues that the
trial court’s dismissal of his cause of action on the basis of Rule 2005(b) violated his
fundamental right to a remedy by due course of law under Article I, Section 11 of
4
Rule 2005(b) was adopted on January 24, 2019, and became effective on April 1, 2019,
approximately four months after Mr. Blewitt commenced his case in that manner. See Pa.R.C.P.
No. 2005(b).
5
In addition to the issue of the trial court’s dismissal of his cause of action, Mr. Blewitt
also challenges the trial court’s dismissal of his motion to compel. Because we vacate the trial
court’s dismissal of Mr. Blewitt’s cause of action, we do not reach the merits of the motion to
compel.
6
Our review of a trial court’s order dismissing a cause of action prior to trial is limited to
determining whether the trial court abused its discretion or committed an error of law. See Szoko
v. Township of Wilkins, 974 A.2d 1216, 1219 n.7 (Pa. Cmwlth. 2009). Such review raises a
question of law as to which our standard of review is de novo and our scope of review is plenary.
Id.4
the Pennsylvania Constitution. Pa. Const. art. I, § 11. He further argues that the trial
court’s use of a self-described harmless error approach to explain that its actions
were justified under statute of limitations grounds amounted to procedural due
process violations under both the Pennsylvania and United States Constitutions
because he was not given notice and an opportunity to be heard. Mr. Blewitt seeks
a remand to the trial court. Mr. Blewitt’s Brief at 8-31.
The County of Chester (County), through its Solicitor’s Office,
responds that it was never properly served with Mr. Blewitt’s writ of summons and
that Mr. Blewitt never advanced his case by filing a complaint setting forth his
specific allegations while the matter was with the trial court.7 County’s Brief at 7
(citing Beglin v. Stratton, 816 A.2d 370 (Pa. Cmwlth. 2003) (plaintiff must advance
cause of action timely and in compliance with Rules of Civil Procedure)). The
County adds that its counsel personally contacted the Department and learned that
“pursuant to a system upgrade and the Department’s retention policy,” nothing other
than the redacted log already produced in 2015 exists anymore. County’s Brief at
3-4. As such, the County argues that it “cannot be compelled to produce something
it does not have in its possession.” County’s Brief at 7. The County also states that
the trial court correctly concluded that the time period for any cause of action based
on the 2007 accident or the 2015 RTKL request would have elapsed by the time Mr.
Blewitt filed his writ of summons in December 2018. County’s Brief at 7-8.
Pennsylvania Rule of Civil Procedure No. 1007 governs the
commencement of civil actions. Pa.R.C.P. No. 1007. It states that an action “may
be commenced by filing with the prothonotary: (1) a praecipe for a writ of summons,
7
The County adds that it was not even aware of this appeal until it received this Court’s
routine letter from the Prothonotary advising that the County had been included by Mr. Blewitt in
his Notice of Appeal, which listed the “Office of Chester County Solicitor” on the Certificate of
Service. The County asserts that it received nothing from Mr. Blewitt.
5
or (2) a complaint.” Pa.R.C.P. No. 1007. In turn, Rule 401(a) states that: “Original
process shall be served within the Commonwealth within 30 days after the issuance
of the writ or the filing of the complaint.” Pa.R.C.P. No. 401(a). Rule 401(b)(1)
goes on to state: “If service within the Commonwealth is not made within the time
prescribed by subdivision (a) of this rule . . . the prothonotary upon praecipe and
upon presentation of the original process, shall continue its validity by reissuing the
writ or reinstating the complaint, by writing thereon ‘reissued’ in the case of a writ
or ‘reinstated’ in the case of a complaint.” Pa.R.C.P. No. 401(b)(1). If service is
completed timely, the return of service must be filed with the prothonotary to ensure
the continued viability of the cause of action. See Pa.R.C.P. No. 405(e).
In Township of Lycoming v. Shannon, 780 A.2d 835 (Pa. Cmwlth.
2001), this Court stated: “Unless a party applies to a court for an extension of time
in which to serve original process, or unless the parties agree to waive the [30]-day
time restriction, a writ or complaint will be ‘dead’ at the expiration of 30 days.” Id.
at 839. Specifically, “neither the record nor the docket entries of the trial court
demonstrate[d] that the complaint was personally served upon the [defendants]
within [30] days after the Township filed the complaint . . . . The record also fail[ed]
to show that the Township reinstated the complaint to continue its validity after the
expiration of the [30]-day period for serving original process.” Id. at 838-39.
Therefore, the Township’s complaint was “dead,” and any subsequent actions or
proceedings were “invalid” and vacated by this Court. Id. at 839.
Here, Mr. Blewitt commenced his civil action via writ of summons on
December 13, 2018, but he did not have it served on the County or any party within
30 days. See R.R. at 2a. Nor did he keep his writ of summons active and viable by
seeking to have it reissued or reinstated by filing a praecipe with the prothonotary
6
within 30 days, or by otherwise petitioning the trial court for leave to continue his
action. See id. Although Mr. Blewitt served a subpoena for documents on the
Department on January 22, 2019, he had not yet served the writ of summons on
anyone and 30 days had already elapsed. Id. After that, nothing was done until June
14, 2019, when Mr. Blewitt motioned the court to compel the County’s production
of documents. Id. That action led directly to the trial court’s September 18, 2019
order that is the basis for this appeal. Id. at 1a. But by then, owing to Mr. Blewitt’s
failure to serve or preserve his writ of summons by requesting that it be reissued by
January 14, 2019,8 there was no longer a viable cause of action before the trial court
and any action the trial court took, even dismissing the matter on procedural or
statute of limitations grounds as it did, was invalid.9 Township of Lycoming; See
also Pa.R.C.P. No. 401(b)(1).
We therefore conclude that after Mr. Blewitt’s writ of summons
expired, the trial court no longer had any viable cause of action before it when it
addressed this matter as either a violation of Rule 2005(b) or a futility in light of
probable statutes of limitations lapses.
Based upon the foregoing, we vacate the order of the trial court.10
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
We note that the 30th day, January 12, 2019, fell on a Saturday.
9
Mr. Blewitt was proceeding pro se at that time, and while pleadings filed by a pro se
litigant are to be construed liberally, a pro se litigant is not to be given any particular advantage
because of his lack of knowledge of the law. Mueller v. Pa. State Police Headquarters, 532 A.2d
900, 902 (Pa. Cmwlth. 1987).
10
Because we vacate the trial court’s order, we do not reach Mr. Blewitt’s arguments going
to the merits of the trial court’s decision.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Blewitt, :
Appellant :
:
v. :
: No. 1483 C.D. 2019
John Doe :
ORDER
AND NOW, this 6th day of January, 2021, the order of the Court of
Common Pleas of Chester County (trial court) dated September 18, 2019, is
VACATED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge