J-A18013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R. MARTIN COMPANIES, INC. T/D/B/A                IN THE SUPERIOR COURT OF
MARTIN CONSTRUCTION COMPANY                            PENNSYLVANIA

                       v.

MICHAEL T. FOSTER, MICHAEL T.
FOSTER, ERIKA J. KIRKPATRICK

APPEAL OF: MICHAEL T. FOSTER                          No. 1357 MDA 2015


                  Appeal from the Order Entered July 14, 2015
                 In the Court of Common Pleas of Berks County
                         Civil Division at No(s): 10-6048


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 13, 2016

       Appellant, Michael T. Foster, appeals from the trial court’s July 14,

2015 order, dismissing with prejudice Appellant’s amended counterclaim and

joinder complaint due to Appellant’s failure to serve and failure to

prosecute.1 We affirm.

       The trial court set forth the facts and procedural history of this case as

follows:
             [Appellant], Michael Foster, filed a joinder complaint
       against [Appellee], R. Martin Companies, Inc. and joinder
       [Appellees], Raymond Martin, John Scully, David Martin, Daryl
       Martin, Siber Boada, John/Jane Doe-1, and John/Jane Doe-2.
       The attorney for the joinder [Appellees] entered a limited
       appearance for the purpose of filing preliminary objections.
       Except for [Appellee], the other additional [Appellees] never had
____________________________________________


1
 This order was dated July 7, 2015, but was not docketed until July 14,
2015.



*Former Justice specially assigned to the Superior Court.
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     service of process effectuated on them. On May 31, 2011,
     additional [Appellees] filed preliminary objections on the ground
     that [Appellant] had not served them in the manner required by
     the Pennsylvania Rules of Civil Procedure.

            On June 20, 2011, [Appellant] filed an amended joinder
     complaint which did not address any of the additional
     [Appellees’] preliminary objections; therefore, additional
     [Appellees] again filed preliminary objections. On August 3,
     2011, [Appellant] filed a combined document entitled Third
     Amended Answer, New Matter and Counterclaim with the
     Amended Joinder Complaint.          This pleading again failed to
     address any of the additional [Appellees’] objections and was
     still not served on the additional [Appellees].

          On September 14, 2011, [Appellant] filed a Fourth Answer,
     New Matter and Counterclaim and Joinder Complaint which was
     again not served on any of the additional [Appellees] and on
     counsel of record for [Appellee].

           Additional [Appellees] filed preliminary objections to this
     pleading. Their attorney entered a limited appearance for the
     purpose of objecting to the joinder. They asserted that the
     joinder was improper because they were not served pursuant to
     Pa. R.C.P. [] 2252 which mandates that a joining party file and
     serve a complaint in the manner required of original process.
     This was the fourth time that this objection was raised by the
     additional [Appellees]. [Appellant] filed his document with the
     Prothonotary without providing a copy to [Appellee’s] counsel, so
     [Appellee] also was not served.

           [Appellant’s] answer to the preliminary objections was that
     there is neither a law nor a rule setting a time frame for service.
     [Appellant] admitted in paragraph 4 of his answer that he did
     not serve the parties. [Appellant] argued that the additional
     [Appellees] wanted to run up costs by objecting to service
     instead of just filing an answer.

           This court scheduled argument on July 6, 2015 for
     [Appellee’s] and the additional [Appellees’] preliminary
     objections. This court issued its order on July 7, 2015, and it
     was docketed on July 14, 2015. On August 3, 2015, [Appellant]
     filed a motion for reconsideration which this court denied on
     August 10, 2015, after the undersigned had returned from a one

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      week vacation. The denial was docketed on August 12, 2015.
      On August 3, 2015, [Appellant] also filed an amended motion for
      reconsideration which this court denied on August 12, 2015. On
      August 6, 2015, [Appellant] filed a Notice of Appeal while the
      motions for reconsideration were still pending and this court was
      on vacation out-of-state.

Trial Court Opinion (TCO), 9/25/15, at 1-3.

      Pursuant to the trial court’s order, Appellant filed a timely concise

statement of errors complained of on appeal in accordance with Pa.R.A.P.

1925(b). However, Appellant did not comply with the requirements of Rule

1925(b), which sets forth that the statement “shall concisely identify each

ruling or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge.”    See Pa.R.A.P. 1925(b)(4)(ii).

Further, it is well-established that “a Concise Statement which is too vague

to allow the court to identify the issues raised on appeal is the functional

equivalent to no Concise Statement at all. Even if the trial court correctly

guesses the issues [the] [a]ppellant raises on appeal and writes an opinion

pursuant to that supposition, the issue is still waived.” Commonwealth v.

Heggins, 809 A.2d 908, 911 (Pa. Super. 2002) (internal citations and

quotations omitted).

      Here, the trial court explained:

             This court directed [Appellant] to file a Concise Statement
      of Errors Complained of on Appeal. [Appellant] filed a document
      entitled ‘Rule 1925(B) Statement’ which states that the Order
      dated July 7, 2015 and filed with the Prothonotary on July 14,
      2015 contains ‘rulings and the errors complained of on appeal.’
      The Statement has a section entitled ‘Sufficient Detail to Identify
      Pertinent Issues.’



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             [Appellant’s counsel] seems to believe that the
      Pennsylvania Rules of Civil Procedure do not apply to him. Rule
      204.1 mandates that the text be double spaced. [Appellant’s]
      documents are single spaced. Rule 206.1(c) provides that a
      petition   must    be  divided    into  paragraphs    numbered
      consecutively and that each paragraph should contain, as far as
      practicable, only one material allegation.          [Appellant’s]
      documents do not contain any numbered paragraphs.            The
      issues are jumbled together and are confusing[,] which this
      court believes is done deliberately. All Pennsylvania attorneys
      operate under the same time constraints and all the others can
      follow the mandated rules. This court submits that [Appellant’s]
      appeal should be dismissed because he failed to preserve
      adequately any issues in these nonconforming and obfuscatory
      documents.

TCO at 3-5. Given the vagueness of Appellant’s concise statement and the

trial court’s difficulty in gleaning which issues Appellant seeks to challenge

on appeal, this Court determines that Appellant has waived all issues set

forth therein. See Lineberger v. Wyeth, 894 A.2d 141, 143 (Pa. Super.

2006) (“We hold [the] [a]ppellant waived her issues on appeal, because her

court-ordered Rule 1925(b) concise statement of matters complained of on

appeal was vague and overly broad.”).

      Nevertheless, even if Appellant had properly preserved the issues that

he challenges herein, this Court would affirm the trial court’s order

dismissing his counterclaim and joinder complaint due to Appellant’s failure

to serve and failure to prosecute. In his appellate brief, Appellant presents

four issues for our review:

         A. Was it error for the lower court to have treated
            [Appellant’s] “counterclaim,” and the [Appellant’s] claim
            against third-parties, as though they were one and the
            same?



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         B. Was it error for the lower court to dismiss [Appellant’s]
            “counterclaim” due to its not having been served, when, in
            fact, not only had it been served but also it had been
            formally answered?

         C. Was it error for the lower court to dismiss [Appellant’s]
            “joinder complaint,” due to its not having been served,
            when, in fact, counsel had entered an appearance for all of
            the “additional [Appellees]” and then was served under Pa.
            R.C.P. 440?

         D. When the hiatus was due to the automatic stay imposed by
            bankruptcy law, and when the court acted solely sua
            sponte and without taking any evidence, and when the
            court did not schedule the matter for a hearing (nor even
            for oral or written argument), was it error for the lower
            court to dismiss a case for docket inactivity?

Appellant’s Brief at 4 (unnecessary capitalization and emphasis omitted).

      To begin, we note that “[t]he question of whether an action has been

properly terminated. . . rests within the discretion of the trial court and will

not be disturbed absent an abuse of that discretion or an error of law.”

Tucker v. Ellwood Quality Steels Co., 802 A.2d 663, 664 (Pa. Super.

2002) (internal citations omitted).

      Appellant first contends that the trial court erred in treating his

counterclaim and his claim against third parties “as though they were one

and the same.” Appellant’s Brief at 4. We disagree. In its opinion, the trial

court distinguishes between Appellant’s counterclaim and his claim against

third parties, explaining, “This court dismissed the underlying counterclaim

due to [Appellant’s] lack of prosecution in the case sub judice. [Appellant]

did not do anything concerning the outstanding problems addressed by the

preliminary objections. [Appellant] continued to file vague pleadings and did


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not effectuate service.” TCO at 7. The joinder complaint, in contrast, was

dismissed for lack of prosecution and lack of service where, “despite his

being on notice since 2011 and being reminded throughout four sets of

preliminary objections addressing the same issue of ineffective service,

[Appellant] still refused to serve the joinder complaint properly.” Id. at 6.

Therefore, we would conclude that the trial court did not err on this basis

because it did independently dispose of the counterclaim and joinder

complaint.

        Second, Appellant claims that the trial court erred by dismissing his

counterclaim “due to its not having been served, when, in fact, not only had

it been served but also it had been formally answered[.]” Appellant’s Brief

at 4.      However, as discussed supra, the trial court dismissed the

counterclaim on the basis of lack of prosecution by Appellant, not based on a

service error.2

        Moreover, we see no error in the court’s decision that Appellant failed

to prosecute.       Generally, “[w]here a matter has been inactive for an

unreasonable period of time, the tribunal, on its own motion, shall enter an
____________________________________________


2
   Additionally, the trial court noted that “[o]n September 14, 2011,
[Appellant] filed a Fourth Answer, New Matter and Counterclaim and Joinder
Complaint which again was not served on any of the additional [Appellees]
and on counsel of record for [Appellee].”         TCO at 2.     Specifically,
“[Appellant] filed his document with the Prothonotary without providing a
copy to [Appellee’s] counsel, so [Appellee] also was not served.” Id. at 2.
Moreover, the trial court determined that the “counterclaim [was] vague and
alleges no real cause of action.” Id. at 6.



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appropriate order terminating the matter.” Pa.R.J.A. 1901(a). In order to

dismiss a case for inactivity, “there must first be a lack of due diligence on

the part of the plaintiff in failing to proceed with reasonable promptitude.

Second, the plaintiff must have no compelling reason for the delay. Finally,

the delay must cause actual prejudice to the defendant.” Shope v. Eagle,

710 A.2d 1104, 1107-08 (Pa. 1998) (internal citations omitted).

      The trial court applied the three-part test stated above, to determine

that Appellant’s counterclaim should be dismissed for inactivity.    The trial

court determined that Appellant did not act with due diligence in failing to

serve additional Appellees, Appellant proffered no compelling reason for the

delay in litigation, and Appellee had been prejudiced due to the protraction

of the litigation and the resulting increase in attorneys’ fees due to

Appellant’s filing of obscure pleadings and his refusal to serve the joinder

complaint. TCO at 8-9. As such, we would conclude that the trial court did

not err in dismissing Appellant’s counterclaim.

      Third, Appellant argues that it was error for the lower court to dismiss

his joinder complaint, due to its not having been served, when counsel had

purportedly entered an appearance for all of the additional Appellees and

then was served under Pa.R.C.P. 440. See Appellant’s Brief at 4. We would

deem this claim meritless.

      “A party may enter a written appearance which shall state an address

at which pleadings and other legal papers may be served….                Such

appearance shall not constitute a waiver of the right to raise any defense

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including questions of jurisdiction or venue.” Pa.R.C.P. 1012. Further, this

Court has explained, “A defendant manifests an intent to submit to the

court's jurisdiction when the defendant takes some action (beyond merely

entering a written appearance) going to the merits of the case, which

evidences an intent to forego objection to the defective service.” Fleehr v.

Mummert, 857 A.2d 683, 685 (Pa. Super. 2004) (internal citations and

quotations omitted).   In filing preliminary objections to Appellant’s Fourth

Answer, New Matter and Counterclaim, the attorneys for the additional

Appellees entered a limited appearance for purposes of objecting on the

basis of improper joinder.   The mere fact that counsel for the additional

Appellees entered an appearance does not waive their right to challenge lack

of service. Fleehr, supra.

      Furthermore, Appellant contends that “[i]t was complete error to

dismiss the third-party Joinder Complaint due to non-service, when it had

been served pursuant to Pa.R.C.P. 440, by regular mail, upon counsel of

record.” Appellant’s Brief at 23. This argument is off base. Pennsylvania

Rule of Civil Procedure 425 sets forth: “Original process shall be served upon

an additional defendant who is not already a party to the action in the same

manner as if he or she were an original defendant.” Pa.R.C.P. 425. Original

process “shall be served within the Commonwealth only by the sheriff.”

Pa.R.C.P. 400. Pennsylvania Rule of Civil Procedure 440, on the other hand,

describes how service should be made for “[c]opies of all legal papers other

than original process. . .” Pa.R.C.P. 440 (emphasis added). Additionally, as

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pointed out by the trial court, Appellant admitted in his “Answer to Additional

Defendants’   Preliminary    Objections   to   Defendant’s   Amended    Joinder

Complaint,” dated December 7, 2011, that he did not serve the “new

parties.” See TCO at 2. The trial court correctly observed that Appellant’s

mailing of the additional joinder complaint to Appellees’ attorney did not

constitute service under the Pennsylvania Rules of Civil Procedure. TCO at

7.

      Finally, Appellant claims that it was error for the trial court to dismiss

this case for docket inactivity “[w]hen the hiatus was due to the automatic

stay imposed by bankruptcy law, and when the court acted solely sua sponte

and without taking any evidence, and when the court did not schedule the

matter for a hearing (nor even for oral or written argument)[.]” Appellant’s

Brief at 4. We would conclude that these arguments also fail.

      The record shows that Appellant was the only counterclaim plaintiff,

and the bankruptcy proceedings only related to Appellant’s co-defendant.

The trial court explained:

            [Appellant] suggests the other defendant, Ericka
      Kirkpatrick, had a bankruptcy case in federal court which
      protracted the instant case. [] Kirkpatrick has not been involved
      in [Appellant’s] counterclaim which was litigated solely on
      [Appellant’s] behalf.    Thus, the inaction of [Appellant] was
      independent of [] Kirkpatrick’s bankruptcy proceeding. Even
      though [] Kirkpatrick’s bankruptcy case has a docket number of
      13-10856, [indicating that the case was initiated in 2013,]
      [Appellant’s counsel] filed the suggestion of bankruptcy in this
      court only on March 26, 2015. Nevertheless, for approximately
      two years from 2011-2013, [Appellant] did nothing to perfect
      service on the additional [Appellees].


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TCO at 6.       Given that Appellant was not involved in the bankruptcy

proceeding, and that Appellant nevertheless failed to address the issue of

service in the years preceding or following his co-defendant’s bankruptcy,

Appellant’s argument that the “hiatus” was caused by the bankruptcy case is

unpersuasive.

        Furthermore,   Pennsylvania     Rule     of   Judicial   Administration    1901

explicitly permits a tribunal, on its own motion, to terminate a matter where

the matter has been inactive for an unreasonable period of time.                   See

Pa.R.J.A. 1901(a).     The Rule also sets forth that “[b]efore any order

terminating a matter on the ground of unreasonable inactivity is entered, the

parties shall be given at least 30 days' written notice of opportunity for

hearing on such proposed termination.” Pa.R.J.A. 1901(c).

        Here, the docket reflects that on February 23, 2015, the trial court

issued a rule to show cause why the case should not be terminated for

inactivity and ordered that the parties appear for status/argument/hearing

on March 26, 2015.         However, the status/argument/hearing did not take

place    then   because,    according   to     Appellant,   “[u]pon    receiving    this

Suggestion of Bankruptcy, the judge in the lower court cancelled his March

26, 2015, hearing (this cancellation was done via a phone call which the

undersigned received from Chambers, rather than via any Order of Court).”

Appellant’s Brief at 9-10.        This Court notes that the Suggestion of

Bankruptcy, filed by Appellant, was docketed on March 26, 2015.


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      The trial court later scheduled a status hearing on May 8, 2015, which

was subsequently rescheduled to June 25, 2015.        At that status hearing,

Appellee’s counsel informed the trial court that preliminary objections filed

by the additional Appellees were still pending.    As a result, the trial court

continued the June 25, 2015 status hearing to July 6, 2015, where the

parties met with the court and had further argument on the preliminary

objections, regarding lack of service. Following the July 6, 2015 argument,

the trial court issued an order dismissing the matter for failure to prosecute,

in which it explained:

      [I]t appears that [Appellee] has had [its] claims resolved and
      that the only thing remaining before this Court is a counterclaim
      filed by [Appellant] in response to [Appellee’s] Complaint, and it
      further appearing that said Complaint was never served on
      [additional Appellees], and that nearly four years have passed
      since the said counterclaim was filed by [Appellant], and it
      further appearing that, even to this date, after this [c]ourt
      issued its Rule to Show Cause, the said Complaint in the
      counterclaim has still not been served, it is hereby ordered that
      the matter which remains before this [c]ourt, that being the
      counterclaim of [Appellant] versus [Appellee] and others, is
      dismissed for failure to prosecute.

Order, 7/14/15, at 3-4.

      Here, Appellant appeared twice before the trial court following its order

to show cause why the case should not be terminated for inactivity.         At

those times, Appellant had opportunities to advance his reasons to the trial

court for failing to serve the additional Appellees, particularly because the

preliminary objections of the additional Appellees centered on lack of

service. Furthermore, Appellant still did not serve the additional Appellees


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following the trial court’s rule to show cause.    As the trial court noted,

“[t]here were no factual disputes regarding service and lack of prosecution;

the issues were purely legal.      Despite [Appellant’s] contention to the

contrary, [Appellant] had his day in argument court.” TCO at 7. Further, as

pointed out by Appellee, Appellant “never petitioned the court nor filed a

motion to establish the so-called factual determinations he now claims on

appeal would have established his alleged compelling reasons for inactivity.”

Appellee’s Brief at 26. Accordingly, we would conclude that it was not error

for the trial court to dismiss the matter where Appellant clearly had an

opportunity be heard.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2016




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