Tabb, R. v. Thomas, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT TABB : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOHN THOMAS : No. 72 EDA 2022
Appeal from the Order Entered November 17, 2021
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 200700168
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 02, 2023
Robert Tabb appeals from the order granting preliminary objections filed
by John Thomas and dismissing Tabb’s complaint with prejudice. Tabb
contends that the trial court erred in refusing to allow him to amend his
complaint. We affirm and therefore dismiss Thomas’s application to quash as
moot.
Because this appeal requires us to review the trial court’s order
sustaining Thomas’s preliminary objections, we focus our attention on Tabb’s
complaint and the facts alleged therein. Thomas owned property in
Philadelphia. On July 30, 2018, Tabb alleges that he fell when he was
attempting to walk down the steps at Thomas’s property, due to poor lighting
and the steep construction of steps. As a result of the fall, Tabb suffered a
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complete tear in his right shoulder rotator cuff, contusions, severe pains, and
other medical injuries.
On July 6, 2020, Tabb filed a writ of summons, which he reinstated
several times. Thereafter, on April 18, 2021, Tabb filed a complaint, raising
claims of negligence and breach of a written contract. Notably, the complaint
was filed without a verification from Tabb, and Tabb failed to attach the written
contract. On May 20, 2021, Thomas filed preliminary objections, arguing that
the counts in the complaint were not pleaded with specificity to allow Thomas
to prepare a defense, Tabb failed to attach the written contract to the
complaint, and Tabb failed to provide a verification. Tabb did not reply to the
preliminary objections. On June 14, 2021, the trial court entered an order
granting Thomas’s preliminary objections, finding that Tabb’s entire complaint
was stricken for failing to provide a verification and additionally, the breach of
contract claim was stricken for failing to attach the written contract.
On September 15, 2021, without leave of court or agreement with
Thomas, Tabb filed an amended complaint, again raising claims of negligence
and breach of contract. Tabb alleged that the breach of contract was based
upon an oral lease between the parties. Thomas filed preliminary objections,
noting, inter alia, that the amended complaint was untimely filed, and Tabb
failed to seek leave of the trial court or Thomas’s agreement to file his
amended complaint. In response, Tabb filed a second amended complaint,
again without permission of the trial court or the agreement of Thomas.
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Thomas filed preliminary objections. Thereafter, Tabb filed a third amended
complaint, without permission of the trial court or agreement with Thomas.
Tabb raised the same claims as his prior amended complaints. Thomas filed
preliminary objections, arguing that Tabb failed to seek leave of the trial court
or Thomas’s agreement to file the third amended complaint. On November 17,
2021, the trial court granted Thomas’s preliminary objections, finding that
Tabb failed to seek leave of court or agreement with Thomas to file the
amended complaint. The trial court additionally found Tabb’s amended
complaints to be void and stricken and dismissed the action with prejudice.
On December 17, 2021, Tabb filed a timely notice of appeal.1
On appeal, Tabb raises the following question for our review: “Did the
trial court err when it not only sustained preliminary objections to [] Tabb’s
personal injury complaint, but also dismissed the entire action with prejudice
where a valid Writ of Summons was served upon [Thomas]?” Appellant’s Brief
at 8.
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1 We note that on December 16, 2021, Tabb filed a motion for reconsideration.
The trial court did not have jurisdiction to rule on the motion after Tabb filed
his timely appeal. See Pa.R.A.P. 1701(a); see also M.O. v. J.T.R., 85 A.3d
1058, 1061 n.1 (Pa. Super. 2014) (“It often is prudent for a litigant to file [a
motion for reconsideration and appeal]; if the trial court does not grant the
motion for reconsideration before the expiration of the thirty days in which
the litigant can file a notice of appeal, the litigant will lose the right to
appeal.”). Nevertheless, the trial court denied the motion on January 12,
2022.
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Our review of a trial court’s grant of preliminary objections in the nature
of a demurrer is as follows:
[O]ur 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.
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
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.
Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation
omitted).
Tabb contends that he initiated the action through a writ of summons
and his error of not moving to file an amended complaint was a technical error
and he should not be punished for his counsel’s failure to strictly adhere to
the court rules. See Appellant’s Brief at 14-15, 16. Tabb notes that
amendments to allegations in a complaint must be liberally allowed to secure
a speedy determination on the action. See id. at 14, 16, 18-19. Tabb
highlights that Thomas did not suffer any prejudice, because Thomas was
aware of Tabb’s claims, including the breach of an oral contract, and Tabb
should not be foreclosed from obtaining redress for his injuries. See id. at 15,
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17, 18-19. Tabb asserts that his amended complaints complied with the trial
court’s prior orders and state valid causes of actions. See id. at 15, 16-17.
Tabb also argues that despite the fact that the trial court struck the
complaints, the writ of summons is still valid, and he should be allowed to
further litigate the writ. See id. at 14-15, 18-19.
A plaintiff has an automatic right to amend a complaint within twenty
days of the filing of a defendant’s preliminary objections. See Pa.R.C.P.
1028(c)(1). If not filed within twenty days, a plaintiff must obtain either the
defendant’s consent or leave of court to file an amended complaint. See
Pa.R.C.P. 1033(a) (“A party, either by filed consent of the adverse party or by
leave of court, may at any time … amend the pleading.”). “[T]he decision
whether to grant leave to amend a pleading is within the trial court’s sound
discretion.” d’Happart v. First Commonwealth Bank, 282 A.3d 704, 737
(Pa. Super. 2022) (citation omitted).
Here, Thomas filed his initial preliminary objections on May 20, 2021,
the trial court granted the preliminary objections on June 14, 2021, and Tabb
did not file an amended complaint until September 15, 2021. Importantly,
Tabb never requested leave to amend his complaint, nor did he seek Thomas’s
consent to amend the complaint. Further, Tabb does not establish that the
trial court had an obligation to sua sponte allow amendment of the complaint.
Therefore, Tabb waived his claim. See Werner v. Zazyczny, 681 A.2d 1331,
1338 (Pa. 1996) (concluding that a plaintiff’s failure to seek leave to amend
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his complaint renders his claim waived, and no case law “requir[es] a court
to sua sponte order or require a party to amend his pleading”); d’Happart,
282 A.3d at 738 (finding that because plaintiffs did not request permission to
amend the complaint, they waived the claim).
Finally, we reject Tabb’s bald claim that even if the complaints were
properly dismissed with prejudice, the writ of summons was still valid. Here,
Tabb merely cites to Keck v. Bensalem Twp., 862 A.2d 675 (Pa. Cmwlth.
2004), and Brown v. Kleinfelter, 406 A.2d 560 (Pa. Super. 1979), for the
proposition that “the complaint became a nullity,” but that the writ remained.
Appellant’s Brief at 15. However, those cases conclude that the plaintiff should
have appealed from the dismissal with prejudice of his original complaint
because it was a final order and does not in any way declare that the original
writ of summons continues to be valid even after the party files a complaint
and the trial court dismisses the complaint. See Keck, 862 A.2d at 678;
Brown, 406 A.2d at 561. Additionally, Tabb does not cite to any civil rules
that allows for the continued viability of the original writ of summons after the
filing of a complaint. See, e.g., Pa.R.C.P. 401(b)(5) (stating that “[i]f an
action is commenced by writ of summons and a complaint is thereafter filed,
the plaintiff, instead of reissuing the writ, may treat the complaint as
alternative original process and as the equivalent for all purposes of a reissued
writ, reissued as of the date of the filing of the complaint.”); see also
Pa.R.C.P. 401(a) (noting that the plaintiff has thirty days in which to
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accomplish service before the writ expires). Moreover, Tabb reinstated his writ
of summons multiple times prior to filing the initial complaint in this case,
which evidenced his understanding that the writ would not continue to be
viable in perpetuity. Therefore, Tabb does not establish that the original writ
of summons continued to be valid after the filing of his complaint.
Based upon the foregoing, we affirm the trial court’s order. We also deny
as moot Thomas’s application to quash the appeal due to Tabb’s late filing of
his appellate brief.
Order affirmed. Application to quash denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2023
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