Santarelli v. III v. The Estate of J. Abda

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
VICTOR JAMES SANTARELLI, III, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
THE ESTATE OF JOSEPH JOHN :
ABDA, III, JOSEPH ABDA, :
ACTING ADMINISTRATOR OF THE : No. 72 MDA 2019
ESTATE OF JOSEPH JOHN ABDA, III :
AND MARIA ABDA :
Appeal from the Order Entered December 12, 2018,
in the Court of Common Pleas of Lackawanna County
Civil Division at No. 2018-CV-4473
BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: OCTOBER 18, 2019
Victor James Santarelli, III, appeals from the December 12, 2018 order
entered in the Court of Common Pleas of Lackawanna County granting the
preliminary objections filed by The Estate of Joseph John Abda, III,
Joseph Abda, Acting Administrator of The Estate of Joseph John Abda, III and
Mary Abda (collectively, “the Estate”) and dismissing appellant’s complaint
with prejudice.1 We affirm.
The trial court set forth the procedural history as follows:
1 We note that in a per curiam order filed February 5, 2019,
Tamara Santarelli, appellant’s wife, was stricken by this court as an appellant
in this appeal as she was not a party in the underlying case. (Per curiam
order, 2/5/19.)
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On September 28, 2018, [appellant] and
Tamara Santarelli filed a civil Complaint against [the
Estate]. At the time of the filing of the Complaint,
Tamara Santarelli listed her address as SCI
Cambridge Springs. The [Estate] filed Preliminary
Objections to said Complaint on October 16, 2018.
One of the [Estate’s] Preliminary Objections
questioned the status of Ms. Santarelli as a party to
this action, in that, despite not being included on the
Writ of Summons filed in this matter, she maintains
nevertheless that she is a proper Co-Plaintiff in this
action. Tamara Santarelli signed her own name on
the Complaint as a Plaintiff, and she signed
[appellant’s] name to that document as well.
The Office of the Court Administrator of Lackawanna
County sent a scheduling notice regarding oral
argument on the Preliminary Objections on
October 24, 2018 to [appellant] at his Jessup, PA
residence, to Ms. Santarelli at her prison mailing
address in Cambridge Springs, and to defense counsel
John McGovern, Jr. at his Scranton, PA office. Said
notice indicated that “Judge Tom Munley will hear oral
argument on [the Estate’s] Preliminary Objections on
December 11, 2018 at 10:00 a.m.” at the Lackawanna
County Courthouse in Courtroom Six. On the day and
time of the scheduled argument regarding the Estate’s
Preliminary Objections, neither [appellant] nor
Tamara Santarelli attended. Ms. Santarelli was likely
still incarcerated, and [the trial c]ourt reviewed and
considered the assertions and legal arguments she
presented in the documents she filed in this civil
action. Defense counsel appeared and offered
argument on the merits of the Preliminary Objections,
and [the trial c]ourt then ruled in favor of [the Estate],
signing an Order which granted the Preliminary
Objections and dismissed the case with prejudice. All
parties later received a copy of this Order by mail,
which was sent from chambers.
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Trial court opinion, 1/22/19 at 1-2.2 Appellant filed pro se a timely notice of
appeal. The trial court did not require appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, the
trial court filed a Rule 1925(a) opinion.
Appellant raises 15 issues for our review.3 (See appellant’s brief at
3-5.) Appellant’s issue, “[d]id the trial court err in dismissing [a]ppellant’s
complaint?” is, however, dispositive.
Appellant claims the trial court erred in dismissing the complaint with
prejudice when it granted the preliminary objections. (Id. at 41-52.)
Our standard of review of an order of the trial court
overruling or granting preliminary objections is to
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.
Gross v. Nova Chem. Services, Inc., 161 A.3d 257, 262 (Pa.Super. 2017)
(citations and brackets omitted).
2 The trial court opinion does not contain pagination; for the ease of our
discussion, we have assigned each page a corresponding number.
3 We note that several of the issues raised refer to documents as having been
filed by appellant. For example,
Did the trial court err in refusing to directly respond
to [a]ppellant’s and Tamara Santarelli’s Motion to Join
and Motion to Extend Time to File Complaint, filed on
or about September 4, 2018?
Appellant’s brief at 3, ¶ 1. A review of the record reveals that those documents
were, in fact, signed by and filed by only Tamara Santarelli, who is not a party
to this action.
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Pennsylvania Rule of Civil Procedure 1024(a) states, in pertinent part,
as follows:
Rule 1024. Verification
(a) Every pleading containing an averment of fact
not appearing of record in the action or
containing a denial of fact shall state that the
averment or denial is true upon the signer’s
personal knowledge or information and belief
and shall be verified. . . .
....
(c) The verification shall be made by one or more
of the parties filing the pleading . . . .
Pa.R.Civ.P. 1024(a) & (c). The term “‘verified,’ when used in reference to a
written statement of fact by the signer, 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.” See Pa.R.Civ.P. 76.
Pennsylvania Rule of Civil Procedure 1023.1 states, in pertinent part, as
follows:
Rule 1023.1. Scope. Signing of Documents.
Representations to the Court. Violation
....
(b) Every pleading, written motion, and other paper
directed to the court shall be signed by at least
one attorney of record in the attorney’s
individual name, or, if the party is not
represented by an attorney, shall be signed
by the party.
Pa.R.Civ.P. 1023.1(b) (emphasis added).
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A complaint is a legal nullity, void ab initio, when the complaint is not
signed by the pro se plaintiff and fails to include the essential verification
statement signed by plaintiff. See Atl. Credit and Finance, Inc. v.
Giuliana, 829 A.2d 340, 344 (Pa.Super. 2003) (citation omitted) (holding
that, the verification requirement is essential to the pleading “because without
it a pleading is mere narration, and amounts to nothing.”); see also Monroe
Contract Corp. v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa.Super.
1979) (holding that, non-compliance with the verification requirement will not
be condoned); Rupel v. Bluestein, 421 A.2d 406, 414 (Pa.Super. 1980)
(stating that, to hold unexplained and unexcused non-compliance with the
verification requirement as unimportant would only encourage
non-compliance by others, and laxity on the part of the lower courts).
Here, the Estate filed preliminary objections to the complaint for failure
of the complaint to conform to law or rule of court, in the nature of a demurrer
to all counts, and for insufficient specificity. (Estate’s preliminary objections,
10/16/18.) In its preliminary objection for failure to conform to law or rule of
court, the Estate contended that the complaint was filed without a verification
statement signed by appellant. (Id. at ¶¶ 20-28.) The Estate averred that
Tamara Santarelli, who was not a party to this action, filed the complaint and
signed appellant’s name, as well as her own name. (Id. at ¶¶ 23, 26.) The
trial court, noting that appellant failed to appear at the hearing on the matter,
to argue the merits of his complaint, or to present opposition to the
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preliminary objections, sustained the preliminary objections upon finding that
the Estate’s arguments were valid and legally supported. (Trial court opinion,
1/22/19 at 2.)
A review of the record reveals that appellant commenced an action
against the Estate; and on August 17, 2018, a praecipe for writ of summons,
listing appellant as the plaintiff, was issued and served upon the Estate.
Tamara Santarelli was not listed as a plaintiff on the praecipe.
Tamara Santarelli signed and filed the complaint, listing herself as co-plaintiff,
and on appellant’s signature line wrote, “Victor James Santarelli III signed
with his permission by Tamara Santarelli.” (See complaint, 9/28/18.) The
complaint did not contain a verification statement signed by appellant, and
the complaint was not signed by appellant, as the pro se plaintiff.
The record clearly demonstrates that the complaint failed to conform to
the Pennsylvania Rules of Civil Procedure requiring that the complaint be
signed by the pro se appellant and contain a verification statement signed by
appellant. See Rules 1023.1 and 1024. Therefore, we find no error in the
trial court’s granting of the Estate’s preliminary objection for failure to conform
to the rules of court. Moreover, because appellant’s complaint is void
ab initio for failure to include the essential verification statement signed by
appellant and was not signed by the pro se appellant, we find appellant’s
other issues moot.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2019
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