Opinion
No. 1216 C.D. 2011
03-14-2012
Peter R. Seamon, Appellant v. Elmer Kenneth Acker and Patrick J. McLaine, Individuals, t/a/d/b/a, and a.k.a. Acker Associates, Inc.
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Peter R. Seamon, pro se, appeals from the May 19, 2011 Order of the Court of Common Pleas of Lackawanna County (trial court) granting the Petition for Judgment of Non Pros (Petition) filed by Elmer Kenneth Acker and Patrick J. McLaine, Individuals, t/a/d/b/a, and a.k.a. Acker Associates, Inc. (hereinafter collectively referred to as "Acker") and entering judgment in favor of Acker. The trial court's Order states that Seamon failed to appear at the scheduled May 19, 2011, hearing on Acker's Petition. The procedural history of this matter, as reflected on the trial court's docket and by the documents contained in the certified record, is as follows.
Seamon filed a complaint against Acker, a private employer, on October 18, 1994, alleging that he was wrongfully discharged from his employment with Acker. Acker filed preliminary objections to the complaint on November 9, 1994. By order of January 27, 1995, the trial court sustained the preliminary objections and provided Seamon twenty days to file an amended complaint. Seamon filed an amended complaint on January 31, 1995. Acker filed an answer and new matter to the amended complaint on February 28, 1995. Seamon filed an answer/reply to Acker's new matter on March 31, 1995. The docket shows a lack of activity between March 31, 1995 and February 27, 1997, when Seamon filed a motion to compel production of documents. The docket next shows activity occurring on March 2, 1999, when Seamon filed another motion to compel and a motion for assignment of judge for discovery proceedings. On August 9, 1999, Seamon filed a notice of intent to serve a subpoena for the production of documents, to which objections were filed on August 12, 1999. On August 26, 2010, Seamon filed a letter notifying the trial court of a change of address.
There was no further docket activity until April 1, 2011, when Acker filed their Petition. Attached to Acker's Petition was a certificate of service stating that Seamon was served by United States Mail with a copy of Acker's Petition. The certificate of service did not state that Acker served Seamon with the Rule issued by the trial court directing: (1) Seamon to show cause why the Petition should not be granted; (2) setting forth a return date; and (3) scheduling a hearing for May 19, 2011. Seamon filed an answer to Acker's Petition on April 25, 2011. The next docket entry is the filing of the trial court's May 19, 2011, Order granting Acker's Petition and entering judgment in Acker's favor based on Seamon's failure to prosecute.
The docket shows one other entry for April 1, 2011, indicating that a document was filed by Seamon. There are four entries for April 14, 2011, which are all objections by third parties to Seamon's subpoenas to produce documents.
On May 31, 2011, Acker filed an amended certificate of service indicating that Seamon was served on April 1, 2011 by United States mail with the Petition and the Rule issued by the trial court setting forth a return date and a hearing date of May 19, 2011. On June 2, 2011, Seamon filed with the trial court: (1) a motion to vacate the Order due to non-notice of hearing; and (2) objections and motion to dismiss or vacate the Order due to non-notice of hearing. Acker filed a response to Seamon's filings on June 15, 2011. On June 20, 2011, before the trial court ruled on Seamon's objections and motions to dismiss or vacate its Order and Acker's objections thereto, Seamon filed his notice of appeal with this Court.
Our exercise of jurisdiction over this case requires some explanation. Seamon filed a Petition for Review with this Court, which we have treated as a Notice of Appeal. Therein, Seamon avers that this Court has jurisdiction over his appeal pursuant to Section 763(a)(1) of the Judicial Code, 42 Pa. C.S. § 763(a)(1), which provides that this Court shall have exclusive jurisdiction of direct appeals from final orders of Commonwealth agencies having Statewide jurisdiction. However, neither Section 763(a)(1) of the Judicial Code nor Section 762 of the Judicial Code, 42 Pa. C.S. § 762, which sets forth our jurisdiction over appeals from courts of common pleas in seven different categories, apply to this matter. "A common theme among these categories is the presence of a state or local government entity or the interpretation of statutes or ordinances affecting the actions of these parties." G. Ronald Darlington, et al., Pennsylvania Appellate Practice § 25:300 (2011-2012 ed.). Since this matter does not involve a state or local government entity as a party, Seamon's appeal of the trial court's Order should have been filed with the Superior Court pursuant to Section 742 of the Judicial Code, 42 Pa. C.S. § 742 (providing that the Superior Court has exclusive appellate jurisdiction except when jurisdiction is vested in the Supreme Court or the Commonwealth Court). However, Section 704 of the Judicial Code, 42 Pa. C.S. § 704, provides that: "[t]he failure of an appellee to file an objection to the jurisdiction of an appellate court within such time as may be specified by general rule, shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court." Id.; see also Pennsylvania Rule of Appellate Procedure 741 (providing that an appellee's failure to object to appellate court jurisdiction before the record is filed with the appellate court operates to perfect the appellate court's jurisdiction). Here, the certified record was received by this Court on August 30, 2011 and, while Acker sets forth an argument in its brief that this Court does not have jurisdiction, Acker did not object to jurisdiction prior to August 30, 2011. Accordingly, we will exercise jurisdiction over Seamon's appeal of the trial court's May 19, 2011 Order.
In support of this appeal, Seamon argues that the trial court's May 19, 2011 Order should be vacated and this matter remanded for a new hearing on the merits of Acker's Petition because Seamon was never notified of the scheduled May 19, 2011 hearing before the trial court. In response, Acker contends that Seamon's appeal is premature and should be dismissed because he failed to follow the mandatory procedure set forth in Rule 3051 of the Pennsylvania Rules of Civil Procedure for requesting relief from the entrance of the judgment of non pros by the trial court.
Seamon states that he is not making any argument on the merits of Acker's Petition and that he filed a notice of appeal with this Court in order to preserve his rights. Seamon contends that it was clear that thirty days would pass from the date of the entry of the trial court's May 19, 2011 Order and the trial court's resolution of Seamon's objections and motions to dismiss or vacate. We note that when Seamon filed his appeal to this Court, the trial court could no longer proceed further in the matter and rule on Seamon's pending objections and motions. See Pennsylvania Rule of Appellate Procedure 1701(a), Pa. R.A.P. 1701(a) (stating that, except in certain circumstances not applicable here, the trial court may no longer proceed further in the matter after an appeal is filed).
"'[A]n order entering a judgment of non pros can only be challenged by filing a petition" pursuant to Rule 3051. Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 598-99, 782 A.2d 996, 999 (2001) (quoting Shope v. Eagle, 551 Pa. 360, 366, 710 A.2d 1104, 1107 (1998)). Rule 3051 provides as follows:
(a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.
(b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that
Pa. R.C.P. No. 3051. "A petition to strike a judgment and a petition to open are two distinct remedies." Krell v. Silver, 817 A.2d 1097, 1101 n.5 (Pa. Super. 2003). As explained by our Supreme Court:(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and
(3) there is a meritorious cause of action.
A petition to strike a default judgment and a petition to open a default judgment are generally not interchangeable. A petition to strike does not involve the discretion of the court. Instead, it operates as a demurrer to the record. A demurrer admits all well-pleaded facts for the purpose of testing conclusions of law drawn from those facts. Because a petition to strike operates as a demurrer, a court may only look at the facts of record at the time the judgment was entered to decide if the record supports the judgment. A petition to strike can only be granted if a fatal defect appears on the face of the record. . . .Cintas Corporation v. Lee's Cleaning Services, Inc., 549 Pa. 84, 93-94, 700 A.2d 915, 918-19 (1997) (citations omitted).
In contrast, a petition to open a judgment is an appeal to the equitable powers of the court. It is committed to the sound discretion of the hearing court and will not be disturbed absent a manifest abuse of that discretion. Ordinarily, if a petition to open a judgment is to be successful, it must meet the following test: (1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense. . . . In making this determination, a court can consider facts not before it at the time the judgment was entered. Thus, if a party seeks to challenge the truth of factual averments in the record at the time judgment was entered, then the party should pursue a petition to open the judgment, not a petition to strike the judgment.
Here, a review of Seamon's filings with the trial court objecting to the entry of the trial court's May 19, 2011 Order, and his request that the Order be vacated, show that Seamon is essentially asking the trial court to strike, not open, the judgment in favor of Acker due to lack of notice of the May 19, 2011 hearing. The fact that Seamon's filings are not in the form of a "petition," specifically entitled "Petition to Strike Judgment of Non Pros," or lacks language directly requesting the trial court to "strike" the judgment does not automatically result in the conclusion that Seamon did not comply with Rule 3051. In addressing a party's failure to comply with Rule 3051, our Supreme Court has recognized "that at times the rigid application of our rules does not serve the intended purpose of justice and fairness but rather results in a harsh or even unjust consequence." Sahutsky, 566 Pa. at 600, 782 A.2d at 1001 (quoting Kurtas v. Kurtas, 521 Pa. 105, 109, 555 A.2d 804, 806 (1989)). The Supreme Court stated further that it promulgated Pennsylvania Rule of Civil Procedure 126, Pa. R.C.P. No. 126, in order to grant "the trial court latitude to overlook any procedural defect which does not prejudice the rights of a party." Id. (emphasis in original). When a party attempts to comply with Rule 3051, our Courts will generally excuse non-compliance. Id.
Because Seamon was requesting the trial court to strike the judgment of non pros, rather than open the judgment, Seamon did not need to allege facts establishing the requirements set forth in subsection (b) of Rule 3051. See Krell, 817 A.2d at 1101 (stating that a movant must establish the three factors set forth in Rule 3051(b) in order to have a judgment of non pros opened).
In the instant matter, Seamon did make an attempt, albeit unknowingly, to comply with Rule 3051 when he filed his objections and motions to dismiss or vacate the trial court's May 19, 2011 Order. Dismissing Seamon's appeal on the basis of noncompliance with Rule 3051, as Acker requests, would not serve the rules' "intended purpose of justice and fairness but rather [would] result[] in a harsh [and] . . . unjust consequence[]." Sahutsky, 566 Pa. at 600, 782 A.2d at 1001 (quoting Kurtas, 521 Pa. at 109, 555 A.2d at 806). This is particularly true where Acker has not asserted any prejudice by the alleged procedural defects in Seamon's filings, and Seamon is alleging lack of notice of the May 19, 2011 hearing.
It is well settled that "'[d]ue process reduced to its most elemental component, requires notice.'" PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 230 (Pa. Super. 2007) (quoting Romeo v. Looks, 535 A.2d 1101, 1105 (Pa. Super. 1987)). If a party has failed to effectuate valid service resulting in another party lacking notice of a proceeding against him, "the court has no jurisdiction over the party and is powerless to enter judgment." Id. at 228 (citing Deer Park Lumber, Inc. v. C.B. Major, 559 A.2d 941, 943 (Pa. Super. 1989); Colavecchi v. Knarr, 457 A.2d 111, 114 (Pa. Super. 1983); Liquid Carbonic Corporation v. Cooper & Reese, Inc., 416 A.2d 549, 551 (Pa. Super. 1979)). Accordingly, the entry of a judgment in such circumstances renders the judgment void and constitutes a fatal defect of record. Mother's Restaurant, Inc. v. Krystkiewicz, 861 A.2d 327, 337-38 (Pa. Super. 2004) (citing Barnes v. McKellar, 644 A.2d 770, 773 (Pa. Super. 1994) (a judgment or decree entered by a trial court that lacks jurisdiction over the person is null and void)). Accordingly, in such cases, it is appropriate for a party seeking relief from the entrance of a judgment of non pros, based on allegations that he or she did not have proper notice of a proceeding, to file a petition to strike the judgment.
As we have concluded, Seamon effectively filed a petition to strike the judgment of non pros. However, before the trial court ruled on Seamon's petition to strike, Seamon filed the instant appeal with this Court in order to preserve his rights of appeal, but the trial court, not this Court, is the proper forum to determine, factually, whether Seamon's assertion that he did not receive notice of the May 19, 2011 hearing is true. Accordingly, we will quash Seamon's appeal so that we can remand this matter to the trial court with directions to consider Seamon's filings as a petition to strike the judgment of non pros and to rule on that petition.
In considering Seamon's petition to strike, the trial court must make a factual determination as to whether Seamon had proper notice of the May 19, 2011, hearing on Acker's Petition. As stated previously herein, the April 1, 2011, certificate of service filed by Acker with the trial court states that Acker's counsel served Seamon with "a copy of the foregoing Defendants' Petition for Judgment of Non Pros" by United States Mail. (April 1, 2011 Certificate of Service.) The April 1, 2011, certificate of service does not state that Acker served Seamon with the Rule scheduling the hearing on Acker's Petition for May 19, 2011. Thus, at the time the judgment of non pros was entered, the facts of record did not show that Seamon was served with the Rule issued by the trial court scheduling the May 19, 2011, hearing. Therefore, there was a defect, as of May 19, 2011, on the face of the record as to proper service. If the trial court finds that Seamon did not have notice of the May 19, 2011, hearing, the entrance of the judgment of non pros by the trial court on May 19, 2011, is void and must be stricken. PNC Bank, 929 A.2d at 228; Mother's Restaurant, 861 A.2d at 337-38. However, if, on remand, the trial court denies Seamon's petition to strike and Seamon takes an appeal therefrom, said appeal should be filed with the Superior Court pursuant to Section 742 of the Judicial Code, 42 Pa. C.S. § 742. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 14, 2012, the Notice of Appeal filed by Peter R. Seamon from the Order of the Court of Common Pleas of Lackawanna County, dated May 19, 2011, at No. 94 CV 4378, is hereby QUASHED and this matter is hereby REMANDED for proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge