Preview:

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charlymane Vessells   :
and Kevin Harrell   :
    :
v.   : No. 2105 C.D. 2010
    :
Officer Christopher Dipietro,  : Argued:  October 18, 2011
Officer Paul Camarote, Officer  :
Harry Jones, Officer Charlton Lane,  :
Officer William Smith and Officer :
Steven Mitchell   :
    :
Appeal of: Harry Jones  :



BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES R. KELLEY, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE KELLEY   FILED:  December 21, 2011

Officer Harry Jones appeals from an order of the Court of Common Pleas of Philadelphia County (Trial Court) denying Jones. Post-Trial Motion for Judgment Notwithstanding of Verdict and New Trial.  We affirm in part, and vacate and remand in part.
Charlymane Vessells and Kevin Harrell, husband and wife, filed a civil complaint against City of Philadelphia (City) Police Officers Harry Jones, Charlton Lane, Steven Mitchell, William Smith, Christopher Dipietro, and Paul Camarote
(collectively, the Officers) for damages arising from an incident that occurred on January 19, 2006, when the Officers were on duty in their official capacities.  Vessells and Harrell sued the Officers in their individual capacities, alleging that they were dragged from their parked car, beaten, and arrested for driving under the influence, aggravated assault, and resisting arrest.  The complaint alleged that Officer Jones initiated the assault upon Vessells by removing her from her vehicle, punching her in the face, and slamming her face down into a sidewalk, causing serious injuries.  The complaint further alleged that the remaining Officers joined in the assault against Harrell.  The Officers, including Officer Jones, thereafter filed an answer.
A procedural course followed that included, in part relevant to the instant appeal, an amended complaint and Officer Jones. initial preliminary objections thereto challenging the validity of service upon, and concomitant personal jurisdiction over Jones.  The Trial Court sustained Officer Jones. initial preliminary objections, which were uncontested.  Vessells and Harrell then filed a motion for reconsideration, which the Trial Court granted, vacating the order sustaining Officer Jones. initial preliminary objections, and ordering Vessells and Harrell to answer the initial preliminary objections on the merits or file an amended complaint.  
Vessells and Harrell subsequently filed a second amended complaint, and the Trial Court dismissed Officer Jones. initial preliminary objections as moot, including his objection to the validity of the service upon him.  Thereafter, Officer
Jones filed an answer to the second amended complaint, which included a counterclaim against Vessells and Harrell for assault and battery.  Vessells and Harrell filed a reply and cross claim.  Officer Jones thereafter filed a second set of preliminary objections to Vessells. and Harrell.s answer to Jones. new matter and counterclaim.   The Trial Court subsequently ordered Officer Jones. second preliminary objections overruled except for his objection to the lack of verification; the Trial Court permitted Vessells and Harrell to attach a proper verification, which was timely attached thereafter.  
The case proceeded to a jury trial on October 16, 2009, and the jury returned its verdict on October 30, 2009, in favor of Vessells and against Officer Jones only, among the Officers, on the assault, battery and intentional infliction of emotional distress counts, awarding $550,000.00 in damages ($350,000.00 in compensatory damages, and $200,000.00 in punitive damages).  The jury found in favor of all of the Officers and against Harrell on Harrell.s claims, and in favor of Vessells and Harrell and against Officer Jones on Jones. counterclaim.  On November 6, 2009, Vessells and Harrell filed a bill of costs in the amount of $33,796.91.  On November 10, 2009, Jones electronically filed exceptions to Vessells. and Harrell.s bill of costs.
Officer Jones also filed a post-trial motion seeking entry of judgment notwithstanding of the verdict, and seeking a new trial, alleging error on the part of
the Trial Court in, inter alia, concluding that personal jurisdiction existed over Jones, and in failing to grant a mistrial in the wake of certain comments of Vessells. and Harrell.s counsel in closing argument that Jones argued constituted inflammatory and prejudicial remarks.  Jones. post-trial motion was denied by the Trial Court by order dated March 5, 2010.  By separate order dated March 5, 2010, the Trial Court denied Officer Jones. exceptions to Vessells. and Harrell.s bill of costs for failure to comply with the applicable rules of Court.  On the same date, the Trial Court granted Vessells. and Harrell.s motion for delay damages and molded the verdict to $564,895.00.  Vessells thereafter filed a praecipe to enter judgment on the verdict, which the Trial Court granted by order dated March 29, 2010.  
Officer Jones timely appealed to the Superior Court.  The Superior Court transferred the matter to this Court1 by order dated August 12, 2010.2  
1 When reviewing a trial court's denial of post-trial motions, this Court's scope of review is limited to determining whether the trial court abused its discretion or committed an error of law.  Corbett v. Manson, 903 A.2d 69 (Pa. Cmwlth. 2006).
2 By order of this Court dated March 17, 2011, Officers DiPietro, Camarote, Lane, Smith, and Mitchell have been precluded from filing briefs and participating in oral argument in this matter, due to their failure to file briefs in accordance with this Court.s order of February 24, 2011.
3 Officer Jones raised the lack of the invalid service in his initial preliminary objections.  Reproduced Record (R.R.) at 77-78.
Officer Jones first argues that the judgment and related orders against him are invalid due to a lack of personal jurisdiction caused by defective service.3  Officer Jones asserts that he was never personally served with the complaint in this
matter, but rather the City.s Law Department was served as evidenced by the Affidavit of Service.  R.R. at 57.  Officer Jones emphasizes that while he previously worked for the City Police Department, he was retired before the service at issue, and did not authorize anyone in the City Law Department to accept service of a complaint on his behalf.  While acknowledging that the Law Department did accept service of both the initial complaint, and the amended complaint,4 on his behalf, Officer Jones emphasizes that the Law Department subsequently made it clear that it was not representing Officer Jones, and filed a petition to withdraw its representation on November 21, 2008.  R.R. at 58.  Absent any valid personal service directly on him, Officer Jones. argues that the Trial Court lacked personal jurisdiction over him in this matter, and that neither the judgment herein nor any of the Trial Court orders against him are valid.  
4 The Trial Court held that the service issue was moot in light of Vessells. and Harrell.s amended complaint, and service thereof.  Trial Court Opinion at 5-10.  Officer Jones argues that any service of the amended complaint did not cure the service defect, as neither the amended complaint nor the original complaint were personally served on Officer Jones, but were in fact served upon the Law Department.
Unlike subject matter jurisdiction, which cannot be waived and may be raised at any time, personal jurisdiction may be waived.  Wagner v. Wagner, 564 Pa. 448, 768 A.2d 1112 (2001).  On this issue, this Court has stated:
For years, strict compliance with the rules pertaining to service was required for a case to proceed.  See Sharp [v. Valley Forge Medical Center & Heart Hospital, Inc., 422
Pa. 124, 221 A.2d 185 (1966)]; Beglin v. Stratton, 816 A.2d 370 (Pa. Cmwlth. 2003) (Procedural rules relating to service of process must be strictly followed because jurisdiction of the person of the defendant cannot be obtained unless proper service is made.); cf. Leidich v. Franklin, 575 A.2d 914 (Pa. Super.), petition for allowance of appeal denied, 526 Pa. 636, 584 A.2d 319 (1990) (plaintiffs' initial procedurally defective service was excused where the defendant had actual notice of the commencement of litigation and was not otherwise prejudiced). Failure to adhere to the rules of service often resulted in dismissal.  Beglin; Cahill v. Schults, 643 A.2d 121 (Pa. Super. 1994); Teamann v. Zafris, 811 A.2d 52 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 574 Pa. 761, 831 A.2d 600 (2003).

Recently, our Supreme Court adopted a more flexible approach with regard to service of process.  McCreesh v. City of Philadelphia, 585 Pa. 211, 888 A.2d 664 (2005).  In McCreesh, the Supreme Court addressed the issue of whether a plaintiff's claim will be dismissed where the plaintiff's initial attempts at service do not technically comply with the rules.  Therein, the plaintiff attempted service by sending the writ to the defendant by certified mail, which procedurally was not valid.  Proper service, by hand delivery, was not effected until after the statute of limitations had expired.  The Supreme Court determined that the plaintiff's technically deficient service by mail constituted a good faith effort at notice where the defendant had actual notice of the litigation and was not otherwise prejudiced.  McCreesh.  The Court held that dismissal is appropriate only if the plaintiff has demonstrated an intent to stall the judicial machinery or where failure to comply with the Rules of Civil Procedure has prejudiced the defendant.  Id.  The Court reasoned that this approach sufficiently protects defendants from defending against stale claims without the draconian action of dismissing claims based on technical failings that do not prejudice the defendant.  Id.

Fraisar v. Gillis, 892 A.2d 74, 77-78 (Pa. Cmwlth. 2006) (footnote omitted).  In Fraisar, we held that the trial court never obtained personal jurisdiction over the defendants notwithstanding the existence of subject matter jurisdiction, because Fraisar, a pro se inmate, failed to serve any of the defendants in that matter.  Id. at 78.   Fraisar had entrusted service of his complaint to the trial court.s clerk of courts, which responsibility did not lie therewith. Id. at 75, 78.
In addition to recognizing that personal jurisdiction may be waived, our Supreme Court has held it to be axiomatic that a party may expressly or impliedly consent to a court.s personal jurisdiction by affirmatively acknowledging consent, or by taking such steps or seeking relief that manifests submission to the court.s jurisdiction.  Wagner, 564 Pa. at 463, 768 A.2d at 1120.  Once a party takes action on the merits of a case, he waives his right to object to defective service of process.  O'Barto v. Glossers Stores, Inc., 324 A.2d 474 (Pa. Super. 1974).  In O.Barto, the Superior Court found a waiver of jurisdictional objections when the third party defendant served interrogatories, filed an answer to the third party complaint, and sought to enjoin another defendant, all before questioning the propriety of service.5  Id. at 476.  The procedural facts of O.Barto parallel those of the instant matter.
5 Although the Superior Court, in O.Barto, also found that the party challenging personal jurisdiction had waived that challenge due to untimely inaction in filing its objection on jurisdictional grounds, the Court.s conclusion on waiver on procedural action grounds was independently held as a waiver of that objection:

Download 2105-c-d-2010.pdf

Pennsylvania Law