Opinion
J-S20032-15 No. 1607 WDA 2014
08-05-2015
THE ESTATE OF AGNES KLEMM, BY JOANN DEFRANCO, EXECUTRIX AND ANTHONY DEFRANCO, EXECUTOR, INDIVIDUALLY AND TOGETHER Appellants v. PLATEA CEMETERY ASSOCIATION AND MICHAEL CURRAN, PRESIDENT; JOHN/JANE DOES(S); SUED IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered on September 3, 2014
In the Court of Common Pleas of Erie County
Civil Division at No.: 13875-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and WECHT, J. MEMORANDUM BY WECHT, J.:
Joann DeFranco and Anthony DeFranco, putatively acting on behalf of the Estate of the late Agnes Klemm (collectively, "Appellants"), appeal the trial court's September 3, 2014 order. That order sustained the preliminary objections to Appellants' writ of summons that were filed on behalf of Platea Cemetery Association and its affiliated individual defendants (collectively, "Appellees") and dismissed Appellants' writ of summons. We vacate the trial court's order and remand for further proceedings.
The trial court's brief account of the events that led to this appeal and the court's basis for sustaining Appellees' preliminary objections to Appellants' writ of summons provides as follows:
In 1984, Agnes A. Klemm died testate and Joann DeFranco thereafter served as sole executrix of her estate. In 2012, Anthony DeFranco, naming himself as "co-executor" of the Estate of Agnes Klemm ("Estate"), filed his first Petition for Pre-Complaint Discovery. After [Appellees] filed preliminary objections, the Honorable William R. Cunningham denied the petition on May 6, 2013.Trial Court Opinion, 9/3/2014, at 1-2. This timely appeal followed.
On June 17, 2013, [Appellants] filed another Petition for Pre-Complaint Discovery, which [the trial court, by the Honorable John Garhart,] denied on June 20, 2013. [Appellants] filed an interlocutory appeal and[,] on October 4, 2013, the Superior Court quashed the appeal.
On or about April 18, 2014, [Appellants] filed a request for Writ of Summons, naming Joann DeFranco as Executrix and Anthony DeFranco as Executor of the Estate. After the issuance of a writ of summons, [Appellees] filed preliminary objections and a supporting brief. In their motion and brief, [Appellees] assert that: (1) Anthony DeFranco has no standing as he was neither a personal representative of the Estate nor was he an heir; (2) Anthony DeFranco is not a licensed attorney and, therefore, could not sign the request for Writ of Summons on behalf of Joann DeFranco; [and] (3) Joann DeFranco was originally listed as "Administratrix[,"] rather than "Executrix" of the Estate and, therefore, is not a proper party. Furthermore, she has not signed the request nor has she verified the commencement of this action.
After review of the pleadings, [the trial court] finds that Anthony DeFranco is not an executor of the Estate and, therefore, lacks standing to bring an action as a co-executor. Anthony DeFranco has also failed to demonstrate that he was a beneficiary of the Estate and, therefore, lacks standing to bring an action as an individual. Furthermore, Joann DeFranco (incorrectly named as "Administratrix" in the original pleading) did not sign the request for Writ of Summons, nor did she appear pro se or represented by a licensed attorney at the time suit was instituted.
Accordingly, [Appellants] have no standing to bring this suit, this action is void, and the Writ of Summons must be dismissed.
On October 1, 2014, the trial court entered an order directing Appellants to file a concise statement of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellants timely complied on October 13, 2014. On October 16, 2014, the trial court filed an opinion pursuant to Rule 1925(a), wherein the court indicated that its September 3, 2014 memorandum in support of its order dismissing Appellants' writ of summons adequately set forth the reasoning for its ruling.
Appellants present the following issues for our review:
I. Whether the trial court erred in sustaining the preliminary objections based upon the erroneous holding that Appellant Joann DeFranco did not sign for the writ of summons?Brief for Appellants at iii.
II. Whether the trial court erred in sustaining the preliminary objections against Appellant Anthony DeFranco, holding he had no standing, while a complaint had yet to be filed?
We begin by rejecting what appears to us to be an error repeated both by the trial court and by Appellees in this matter. We agree with Appellants that a modest error in the styling of a caption should not be fatal to their action. See Pa.R.C.P. 1018, Feb. 8, 1969 Order, Captioning and Docketing of Actions and Proceedings in the Courts of Common Pleas, ¶ (f) ("No action or proceeding may be dismissed by reason of an erroneous caption or docketing, but the court on motion of any party or on its own motion may correct the caption or direct appropriate docketing."). The trial court and Appellees seem preoccupied with the fact that, at the very outset of this case, Appellant Joann DeFranco was misidentified as the "administratrix" of the Estate rather than as its "executrix." An executor is a person named in a will to perform the duties of managing the testator's estate; an administrator is a person named by the court to fulfill that task when a person dies intestate or no executor has been named in the decedent's will. Compare Black's Law Dictionary at 46 (Deluxe 7th ed.) with id. at 591. The distinction is non-trivial under certain circumstances, but in this case, the intention was clear, the confusion was effectively rectified by the substance of the originally miscaptioned request for pre-trial discovery, wherein Joann DeFranco's role vis-à-vis the Estate was accurately described, and there is no suggestion that the initial misnomer in any way prejudiced Appellees or misled them as to the identity of the named parties in any way that is material to the underlying claims. Indeed, that Appellees even sought relief based upon this error underscores their awareness of DeFranco's actual role relative to the Estate. Accordingly, this error, which preceded even the filing of the writ of summons now at issue, does not furnish a valid basis for dismissing the writ.
In the only case we have found addressing this provision, this Court observed in Folmar v. Shaffer that the 1969 order "was added . . . to [en]sure easy amendment in cases of errors of captioning or docketing as a result of the changes in the structure of the courts of common pleas made by a 1968 amendment to the Pennsylvania Constitution. . . . It was not intended to save pleadings that are substantially inadequate." 332 A.2d 821, 823 n.2 (Pa. Super. 1974). In our view, the mere confusion by a pro se litigant of the subtle distinction between an executor and an administrator of an estate did not in this case result in substantial inadequacy. Cf. Hill v. Thorne , 635 A.2d 186, 189 (Pa. Super. 1993) ("[A] pro se complaint will not be dismissed just because it is not artfully drafted.").
We also agree with Appellants that the "action" at issue is that which was the subject of the writ of summons, and that the events that preceded service of the writ—specifically, Appellants' two unavailing pre-writ attempts to obtain "pre-complaint discovery"—are immaterial to the instant controversy. See Pa.R.C.P. 1007 (noting that an action is commenced either by filing a praecipe for a writ of summons or a complaint). We so conclude notwithstanding that the earlier attempts to secure discovery occurred at the same docket number such that the certified record in this case contains all of the above-mentioned documents and others. This is yet another reason that we will not endorse the trial court's reliance upon the minor error of substituting "administrator" for "executor" in the initial caption as a basis for dismissal: Since the writ of summons phase commenced, Appellant Joann DeFranco appears to have been properly identified as an executor of the Estate, even if the error in the caption itself has persisted.
Turning to Appellant's issues, we agree that the trial court ruled prematurely in this matter. This Court has jurisdiction to review only final orders, unless an appeal otherwise is permitted by statute. Pugar v. Greco , 394 A.2d 542, 544 (Pa. 1978). Generally, a final order is one that "disposes of all claims and of all parties," is expressly defined as such by statute, or is entered as a final order by express determination of the trial court that allowing appeal "would facilitate resolution of the entire case." Pa.R.A.P. 341(a). Because the order before us purports to sustain Appellees' preliminary objections and dismiss Appellants' writ of summons, it would appear at first blush that, in disposing of all claims against all parties, the order is final under Rule 341(a). In this case, though, appearances are deceiving.
In the procedural posture of this case, Appellees' preliminary objections were not permitted by the Pennsylvania Rules of Procedure. Pennsylvania Rule of Civil Procedure 1028, which governs preliminary objections, provides in relevant part and without qualification that "[p]reliminary objections may be filed by any party to any pleading." Pa.R.C.P. 1028(a) (emphasis added). "Pleading" is defined by Pa.R.C.P. 1017, which provides that "the pleadings in an action are limited to" a complaint and answer thereto, and various other filings that necessary follow the filing of a complaint, including preliminary objections. Pa.R.C.P. 1017(a).
Pennsylvania's appellate courts on more than one occasion have addressed whether a writ of summons is a "pleading" for purposes of Rule 1028, and have determined without exception that it is not. Our Supreme Court's decision in Monaco v. Montgomery Cab Co., 208 A.2d 252 (Pa. 1965), is instructive:
Under the Pennsylvania Rules of Civil Procedure[,] the exclusive method by which a party may raise 'jurisdictional' objections is by preliminary objections. See Pa.R.C.P. 1017(b), 1028(b), 1032. But preliminary objections may not be filed until after the complaint is filed. This is true even though certain 'jurisdictional' objections may become apparent immediately after service of a writ of summons and before the complaint is filed. The inclusion of preliminary objections in the list of allowable pleadings, Pa.R.C.P. 1017, indicates that it was intended to be a response to a prior pleading; a writ of summons is not a pleading. Also, the Note of Procedural Rules Committee to Rule 1017 states that '[a] preliminary objection may be filed to a complaint, answer, reply or counter-reply,' without mentioning a summons. Moreover, waiting until after the complaint is filed would accord with the policy of the Rules to reduce the pretrial stages of the action, and to telescope the various dilatory actions of the defendant, 1 Goodrich-Amram Standard Pennsylvania Practice § 1013(b)6, at 54, because the objections raised by the writ of summons could be disposed of at the same time as the objections raised by the complaint independently of the writ.Id. at 255 (some citations omitted, others modified; emphasis added); accord Keller v. LaBarre , 311 A.2d 683, 684 (Pa. Super. 1973) (holding that challenges to venue, being the province of preliminary objections, may not be raised at the writ of summons stage and will not be waived by the filing of a rule to file a complaint). In Hoeke v. Mercy Hospital of Pittsburgh , 386 A.2d 71 (Pa. Super. 1978), we elaborated upon these principles, holding in explicit terms that, "[a]s Monaco implied, as Keller and the instant case make clear, and as the rules of procedure currently read, defendants may not challenge a defect in a writ of summons or its service until a complaint is filed." Id. at 76.
It has been argued that defendant's evidence in support of his objection to the writ may be weakened if he has to await plaintiff's complaint. The answer to this is that a defendant can, as he did here, force the defendant to file a complaint within 20 days or suffer non pros.[]
See Pa.R.C.P. 1037(a).
These cases, it is true, concerned questions surrounding challenges to jurisdiction and venue, which are not the same as the caption defect and standing-related challenges to the writ of summons raised by Appellees herein. But the concerns animating that prior case law are broad in scope, and are equally present in this matter. Specifically, the concern remains that to allow preliminary objections to a writ of summons will encourage dilatory tactics leading to serial and vexatious pre-trial actions and appeals, unnecessarily burdening the courts, and confounding the clear intent underlying Rule 1028 that all objections of the kind enumerated therein be raised at once, including challenges to form or service of the writ of summons and lack of capacity to sue, the issues raised by Appellees herein. See Pa.R.C.P. 1028(a)(1), (5); Monaco , supra.
In the instant matter, Appellees could have elected, and may elect on remand, to file a rule upon Appellants to file a complaint within twenty days, as provided by Pa.R.C.P. 1037(a) ("If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint."). Appellants may then choose to renew their motion for pretrial discovery and/or file a complaint. Should Appellees then file preliminary objections demurring on their previously asserted bases or on any other grounds, Appellants will have the opportunity to seek discovery, as permitted under certain circumstances by Rule 1028(b)(2) (providing that, if preliminary objections raise issues of fact, the court "shall consider evidence by depositions or otherwise"), or otherwise endeavor to protect their interests through appropriate procedural avenues.
We are sympathetic to Appellants' desire for pre-complaint discovery, just as we are mindful of the threshold questions of standing that comprise the principal thrust of the trial court's order sustaining Appellees' preliminary objections. We recognize that these issues likely will arise again, perhaps to the same ultimate outcome, resulting in an eventual appeal therefrom. However, our recognition of this circumstance does not liberate the parties, the trial court, or this Court from the requirements of the rules of civil procedure, which must be observed. Thus, we vacate the trial court's order sustaining Appellees' preliminary objections and remand for further proceedings that are consistent with the above discussion.
Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015