Opinion
449 C.D. 2021 451 C.D. 2021
09-02-2021
Tracy Marrow, Appellant v. Commonwealth of Pennsylvania, Department of Corrections, Ms. Clark, Mark Garman, John Doe, No. 1, John Doe, No. 2
CHRISTINE FIZZANO CANNON, JUDGE
OPINION NOT REPORTED
Submitted: August 6, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
MEMORANDUM OPINION
CHRISTINE FIZZANO CANNON, JUDGE
Appellant Tracy Marrow (Marrow), an inmate at State Correctional Institution (SCI)-Frackville, appeals from the August 27, 2020, order of the Centre County Court of Common Pleas (trial court), which dismissed Marrow's Third Amended Complaint on the motion of the Department of Corrections (Department), Ms. Clark (Clark), and Mark C. Garman (Garman), Appellees herein. The trial court found that Marrow failed to serve his complaint upon the Office of Attorney General (Attorney General) as required by Section 8523(b) of the Judicial Code, 42 Pa.C.S. § 8523(b), and Pennsylvania Rule of Civil Procedure No. 422(a). Upon review, we affirm.
Marrow listed two additional unnamed defendants as John Doe No. 1 and John Doe No. 2. These individuals were never identified, are not represented by counsel, and are not participating in this appeal.
I. Facts & Procedural Background
On June 17, 2019, Marrow commenced the underlying lawsuit in this matter by filing his original complaint against Appellees. Trial Ct. Op., 11/6/19, at 2 (Ex. to Appellees' Br). Marrow asserted that on June 14, 2017, he sustained injuries to his left shoulder while working in the prison commissary. Id. As a result of that incident, after exhausting his administrative remedies, Marrow brought claims against Appellees alleging negligence, deliberate indifference to safety, malicious intent, and due process violations; he sought monetary damages for his injuries. Id.
These facts are derived from the trial court's November 6, 2019, opinion addressing preliminary objections raised by both sides. The trial court's subsequent orders, including the August 27, 2020, order giving rise to this appeal, were not accompanied by opinions.
Appellees filed preliminary objections with the trial court asserting sovereign immunity, failure to state a claim upon which relief could be granted, and improper service; Marrow filed responsive preliminary objections and a petition for leave to amend his complaint. Trial Ct. Op., 11/6/19, at 3. The trial court sustained Appellees' preliminary objections in part, overruled them in part, overruled Marrow's preliminary objections, and granted Marrow's petition to amend his complaint. Trial Ct. Order, 11/6/19 (Ex. to Appellees' Br.).
Relevant to this appeal, the trial court sustained Appellees' preliminary objections asserting improper service, finding that Marrow served his original complaint on Appellees but did not also serve it on the Attorney General as required by 42 Pa.C.S. § 8523(b) and Rule No. 422(a). Trial Ct. Op., 11/6/19, at 3-4. The trial court concluded that Marrow's failure to serve the Attorney General deprived it of personal jurisdiction over Appellees, but because the court granted Marrow's petition to amend his complaint on other grounds, Marrow also had an opportunity to cure the lack of service by properly serving his amended complaint on the Attorney General. See id. at 11-12 & Order.
Marrow filed an amended complaint but again failed to serve the Attorney General. Appellees again filed preliminary objections averring improper service. In a February 6, 2020, order, the trial court sustained Appellees' preliminary objections and dismissed Marrow's amended complaint. Trial Ct. Order 2/6/20 (Ex. to Appellees' Br.). However, the court granted Marrow 30 days to file a second amended complaint and expressly instructed him to serve it on the Attorney General pursuant to Section 8523(b) and Rule No. 422(a). Id.
Marrow filed a second amended complaint, but yet again failed to serve the Attorney General, in direct defiance of the trial court's order. Appellees once again filed preliminary objections raising lack of service. In a May 18, 2020, order, the trial court sustained Appellees' preliminary objections and dismissed Marrow's second amended complaint. Trial Ct. Order, 5/18/20 (Ex. to Appellees' Br.). Once again, the trial court granted Marrow thirty days to file a further amended complaint and expressly instructed him to serve it on the Attorney General, this time specifying that service was to be completed through the sheriff's office pursuant to Pennsylvania Rule of Civil Procedure No. 400. Id.
Marrow filed a third amended complaint, but notwithstanding the trial court's specific service directive, he once more failed to serve the Attorney General. Appellees filed a motion to dismiss Marrow's third amended complaint, which the trial court granted in the order giving rise to this appeal, which is dated August 26, 2020, but was entered by the trial court prothonotary on August 27, 2020. Trial Ct. Order, 8/27/20 (Ex. to Appellees' Br.). The trial court stated: "[I]t appearing [Marrow] has failed to serve the . . . Attorney General in accordance with Pennsylvania law and as previously ordered three times by this Court . . . [Appellees'] Motion to Dismiss is GRANTED. This action is dismissed for lack of jurisdiction[.]" Id.
Marrow appealed the trial court's August 27, 2020, order to the Superior Court via two identical notices of appeal that he dated and certified as having been mailed on September 24, 2020. Marrow v. Dep't of Corr. (Pa. Super., Nos. 1497 & 1498 MDA 2020). The Centre County prothonotary received these notices of appeal on September 30, 2020, and October 2, 2020, and via duplicate orders issued on March 19, 2021, the Superior Court transferred them to this Court because Appellees are a Commonwealth agency and its employees. Id.
This Court consolidated the duplicate appeals and ordered the parties to address, either by motion or in principal briefs, whether Marrow's appeals were timely. Marrow v. Dep't of Corr. (Pa. Cmwlth., Nos. 449 & 451 C.D. 2021, Order, May 11, 2021). On June 1, 2021, Marrow filed a "motion to show cause" maintaining the timeliness of his appeals and, in the alternative, asserting that any untimeliness should be forgiven due to the judicial emergency associated with the COVID-19 pandemic. In a June 8, 2021, order, this Court determined that the question of timeliness of Marrow's appeals would be addressed in association with the merits of his appeals.
II. Parties' Arguments
Marrow argues that his appeals to Superior Court were timely because weekend days should not be included in the 30-day calculation and hard copies filed through the mail are eligible for a 3-day grace period. Marrow's Reply Br. at 3. Marrow therefore asserts that his deadline from the trial court's August 27, 2020, order was October 4, 2020, and his notices of appeal received by the Centre County prothonotary on September 30, 2020, and October 2, 2020, were timely. Id. Marrow also asserts that his failure to properly serve the Attorney General with his underlying complaint should be excused because the law library at SCI-Frackville was shut down during the COVID-19 pandemic except for very limited access to books by request, and therefore, he was unable to research the appropriate rules and law. Marrow's Br. at 10-11 & Reply Br. at 4. Marrow avers that he did serve his complaint upon Jeremy S. Montgomery, Esquire, of the Attorney General's Office, who was listed as counsel for Appellees on the trial court's docket. Reply Br. at 4. Marrow acknowledges this was not sufficient but asks that his error be excused as he is a layman who was without access to the law library. Id.
Appellees respond that the correct appeal deadline from the trial court's order, which was dated August 26, 2020, was September 25, 2020; therefore, Marrow's notices of appeal received by the Centre County prothonotary on September 30, 2020, and October 2, 2020, were clearly untimely. Appellees' Br. at 10. Appellees add that Marrow has not alleged a breakdown in court operations and that deadline extensions due to COVID-19 expired when the Supreme Court of Pennsylvania ended the pandemic-related judicial emergency as of June 1, 2020, well before Marrow sought to file his appeals in September 2020. Appellees' Br. at 11. Regarding Marrow's underlying action, Appellees maintain that the law and rules requiring service on the Attorney General are clear and that the trial court gave Marrow three opportunities to correct the error, two of which were in direct orders issued on November 6, 2019, and February 6, 2020, before the pandemic closures that affected SCI-Frackville's law library access. Id. at 12-13.
III. Discussion
A. Timeliness of Marrow's Appeal
According to the Pennsylvania Rules of Appellate Procedure, except for circumstances not at issue here, a notice of appeal from a trial court's final order shall be filed with the clerk of the trial court "within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a); see also Pa.R.A.P. 108(b) ("Date of Entry of Orders"). Timeliness of an appeal goes to the subject matter jurisdiction of the court and may be raised at any time, either by the parties or by the court on its own motion. Dep't of Transp., Bureau of Traffic Safety v. Bower, 410 A.2d 91, 92 (Pa. Cmwlth. 1980). It is also well settled that statutory appeal periods are mandatory and may not be extended in the absence of extraordinary circumstances involving fraud or a breakdown in judicial operations. Stanton v. Dep't of Transp., Bureau of Driver Licensing, 623 A.2d 925, 926 (Pa. Cmwlth. 1993).
Recognizing the limitations that prisoners face when attempting to file a timely appeal, our Supreme Court adopted what is known as the "prisoner mailbox rule" in Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997). This rule provides that a pro se prisoner's appeal is filed "as of the date he or she delivers it to the prison authorities for mailing." Id. at 425. The prisoner has the burden of showing that he or she, in fact, delivered the appeal for mailing within the appropriate time period. Id. at 426. Courts may consider the face of the appeal documents in determining whether that burden has been met. Smith v. Commonwealth (Pa. Cmwlth., No. 882 C.D. 2018, filed July 10, 2019), slip op. at 5, 2019 WL 2997470, at *3 (unreported) (citing Miller v. Unemployment Comp. Bd. of Rev., 476 A.2d 364, 366 (Pa. 1984)).
We cite this unreported decision as persuasive authority pursuant to this Court's Internal Operating Procedures. 210 Pa. Code § 69.414(a).
Here, the trial court's final order dismissing Marrow's complaint was dated August 26, 2020, but not entered until the following day, August 27, 2020. Trial Ct. Order, 8/27/20. Marrow therefore had 30 days from August 27, 2020, through Monday, September 28, 2020, to mail his notices of appeal to the trial court. Pa.R.A.P. 108(b), 903(a). The earlier of Marrow's two identical notices of appeal was stamped by the Centre County prothonotary as received on September 30, 2020, making it facially untimely. See Notice of Appeal, Marrow v. Dep't of Corr. (Pa. Cmwlth., Nos. 449 & 451 C.D. 2021). However, Marrow dated his notices of appeal September 24, 2020, and appended a certificate of service stating that the notices were to be mailed on that date. Id. The record before us does not include an envelope with a postmark, but based on the Centre County prothonotary's receipt of the first notice of appeal on Wednesday, September 30, 2020, we conclude that Marrow's notices of appeal were in fact brought to prison authorities for mailing on September 24, 2020. Because they were mailed prior to September 28, 2020, they were timely. Smith, slip op. at 5, 2019 WL 2997470, at *3 (date of notice of appeal and accompanying proof of service compared with date notice was received by court were sufficient to determine timeliness of appeal). Accordingly, we consider the propriety of the trial court's dismissal of Marrow's underlying case.
That Marrow erroneously filed his appeals with the Superior Court does not negate their timeliness. Our Judicial Code enables a court to transfer a matter to the proper tribunal "where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed[.]" 42 Pa.C.S. § 5103(a).
"Whether a court may disregard a litigant's defective service of process or violation of its order is vested within the sound discretion of that court. Konya v. Dist. Att'y of Northampton Cnty., 669 A.2d 890, 892 (Pa. 1995). Absent a finding of an abuse of discretion, a trial court's application of procedural rules, even if rigid, will not be overturned on appeal. Miller v. Klink, 871 A.2d 331, 337 (Pa. Cmwlth. 2005) (citing Konya).
B. Marrow's Failure to Serve the Attorney General
Generally, proper service is a prerequisite to a court acquiring personal jurisdiction over a defendant. Fraisar v. Gillis, 892 A.2d 74, 77 (Pa. Cmwlth. 2006). A defect in service is not a harmless procedural error; "therefore, the rules concerning service of process must be strictly followed." Cintas Corp. v. Lee's Cleaning Servs., 700 A.2d 915, 917 (Pa. 1997). When the Commonwealth or one of its agencies is the defendant, specific service rules apply. Section 8523(b) of our Judicial Code provides: "Service of process in the case of an action against the Commonwealth shall be made at the principal or local office of the Commonwealth agency that is being sued and at the office of the Attorney General." 42 Pa.C.S. § 8523(b) (emphasis added).
Likewise, Pennsylvania Rule of Civil Procedure No. 422 requires that when the Commonwealth is sued, "[s]ervice of original process upon the Commonwealth or an officer of the Commonwealth, or a department, board, commission or instrumentality of the Commonwealth, or a member thereof, shall be made at the office of the defendant and the office of the [A]ttorney [G]eneral by handing a copy to the person in charge thereof." Pa.R.C.P. No. 422(a) (emphasis added). Further, absent limited exceptions not applicable here, "original process shall be served within the Commonwealth only by the sheriff." Pa.R.C.P. No. 400(a).
These rules have been applied strictly. Cintas Corp., 700 A.2d at 917. In Kreidie v. Department of Revenue, 156 A.3d 380, 381-82 (Pa. Cmwlth. 2017), and Reaves v. Knauer, 979 A.2d 404, 408-09 (Pa. Cmwlth. 2009), the plaintiffs' failure to serve the Attorney General led to default judgments because the Attorney General never received notice of the lawsuits in order to trigger its duty to defend the named governmental defendants. In both cases, this Court found the failure to serve the Attorney General to be fatal to the plaintiffs' complaints and ordered the default judgments stricken because the trial courts never had jurisdiction to enter the judgments in the first place. Kreidie, 156 A.3d at 383-84; Reaves, 979 A.2d at 410.
In Saleem v. Department of Corrections (Pa. Cmwlth., No. 1358 C.D. 2019, filed July 20, 2020), 2020 WL 4046022 (unreported), this Court applied the rules and reasoning in Kreidie and Reaves to the trial court's dismissal of an inmate's negligence complaint against the Department. Saleem served his complaint on the Department, but not on the Attorney General, and the Department raised the service defect in preliminary objections. Saleem, slip op. at 2, 2020 WL 4046022, at *1. The trial court sustained the Department's objections but gave Saleem thirty days to cure the defect, followed by a further thirty-day extension before ultimately granting the Department's motion to dismiss when Saleem still failed to properly serve the Attorney General. Id., slip op. at 3, 2020 WL 4046022, at *2.
On appeal to this Court, Saleem argued that his failure to serve the Attorney General amounted to harmless error because the Department sustained no prejudice. We disagreed, finding the issue of prejudice to the Commonwealth irrelevant where Saleem had been given repeated chances to effect proper service on the Attorney General and still failed to do so. Saleem, slip op. at 6-7, 2020 WL 4046022, at *3 (relying on Konya v. Dist. Att'y of Northampton Cnty., 669 A.2d 890, 892 (Pa. 1995)). We also rejected Saleem's assertion that his failure to serve the Attorney General should be excused in light of his pro se status, noting that pro se litigants are subject to the same procedural rules as counseled litigants. Id., slip op. at 7-8, 2020 WL 4046022, at *3-4. Accordingly, we affirmed the trial court's order dismissing Saleem's complaint.
Saleem is on point and persuasive here. As found by the trial court, Marrow did not initially serve his complaint on the Attorney General in compliance with Section 8523(b) and Rule No. 422(a). Trial Ct. Op., 11/6/19, at 4. When the Department pointed out the defect in preliminary objections, the trial court gave Marrow three successive opportunities to correct the error, two of which were in orders issued prior to the onset of the COVID-19 pandemic, when Marrow alleges that law library access at SCI-Frackville became limited. Trial Ct. Orders, 11/6/19, 2/6/20 & 5/18/20. The trial court was under no obligation to overlook Marrow's failure to comply with its orders, which were not merely procedural in nature, but prevented the court from obtaining personal jurisdiction over the entities and individuals that Marrow named in his complaint. See Cintas Corp., 700 A.2d at 917; Fraisar, 892 A.2d at 77.
Moreover, the trial court's November 6, 2019, decision quotes Section 8523(b) and Rule No. 422(a) in full. Trial Ct. Op., 11/6/19, at 3. These rules requiring service on the Attorney General are clear and unambiguous. The trial court's May 18, 2020, order also instructed Marrow that service by a sheriff was required. As the trial court previously pointed out, Marrow knew how to arrange for service by the sheriff since he had properly served his initial complaint on the Department defendants through the sheriff's office. Trial Ct. Order, 5/18/20 & Department's Br. at 13. Therefore, Marrow's arguments based on his pro se status and restricted library access are unavailing.
Moreover, a plaintiff's bald allegation of service upon an individual attorney in the Attorney General's Office, unsupported by any record proof such as a sheriff's return of service, is not sufficiently compliant with the rules. In Reaves v. Knauer, 979 A.2d 404 (Pa. Cmwlth. 2009), this Court cited a single case where the service defect was overlooked because it was clear the Attorney General had actual knowledge of the lawsuit and sustained no prejudice. Id. at 410 (citing Moore v. E. State Sch. & Hosp., 5 Pa. D. & C. 3d 121 (C.P. Bucks 1978)). However, strict compliance is the rule and a trial court's application of the rules, even if rigid, will not be overturned absent an abuse of discretion. Cintas Corp., 700 A.2d at 917; Konya, 669 A.2d at 892. The record does not indicate that Marrow made this specific argument to the trial court, but even if he did, it was clearly rejected, and we see no abuse of discretion in the trial court's decision to dismiss Marrow's complaint. To the extent that Marrow now claims he served his complaint on Attorney Montgomery, who was listed on the trial court's docket as counsel for Appellees through the Attorney General's Office, this assertion was made in Marrow's reply brief to this Court. Marrow's Reply Br. at 4. Such assertions are not part of the record and may not be relied on by a reviewing court. See Sanders v. Workers' Comp Appeal Bd. (Marriott Corp.), 756 A.2d 129, 133 (Pa. Cmwlth. 2000).
IV. Conclusion
In light of the foregoing discussions, we conclude that Marrow's duplicate appeals from the trial court's August 27, 2020, order were timely. We also conclude that the trial court did not err or abuse its discretion in finding that due to Marrow's continued failure to comply with its orders and properly serve his complaint on the Attorney General, it lacked personal jurisdiction over the defendants in his complaint. The trial court's order is therefore affirmed.
ORDER
AND NOW, this 2nd day of September, 2021, the August 27, 2020, Order of the Court of Common Pleas of Centre County is AFFIRMED.