Grimm v. Grimm

149 A.3d 77

2016 PA Super 217

Robert E. Grimm, II, Appellant

v.Altha Eugene Grimm, a/k/a Eugene Grimm, and Eva M. Grimm, His Wife, a/k/a Eva M. Thompson and Vincent J. Roskovensky, II, Individually and d/b/a/ Vincent J. Roskovensky, II, Attorney at Law, Appellees

No. 915 WDA 2015

Superior Court of Pennsylvania.

Argued May 17, 2016

Filed September 28, 2016

Robert E. Grimm, Smithfield, for appellant.

Matthew G. Breneman, Pittsburgh, for Altha Grimm, appellee.

Vincent M. Roskovensky, Pittsburgh, for Eva Grimm, appellee.

Scott R. Eberle, Pittsburgh, for Roskovensky, appellee.

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

OPINION BY OLSON, J.:

Appellant, Robert E. Grimm II (“Grandson”), appeals from the judgment entered on May 11, 2015. In this case, we consider whether a trial court possesses subject matter jurisdiction over claims pending against a defendant when the defendant in an action dies during the litigation and no personal representative is substituted in his or her place. After careful consideration, we hold that the death of a party deprives the trial court of subject matter jurisdiction over litigation by or against the deceased until such time as the deceased's personal representative is substituted in his or her place. We therefore vacate the trial court's judgment of non pros as to Altha Eugene Grimm (“Grandfather”). We conclude, however, that the trial court properly sustained preliminary objections filed by the other defendants and therefore affirm those determinations.

The factual background of this case is as follows.¹ During 2005, Grandfather's family noticed a decrease in his mental capacity. On September 26, 2005, they contacted Adult Protective Services (“APS”). After APS evaluated Grandfather, he was involuntarily committed to a mental health facility on September 30, 2005. While committed, Grandfather's then-girlfriend, Eva M. Grimm (“Grandmother”) held herself out as Grandfather's wife.² Based upon Grandmother's representations to the mental health facility, Grandfather was released into her care. Grandmother encouraged Grandfather to act violently towards other family members and refused to help Grandfather with his mental health treatment.

During subsequent competency proceedings, Vincent J. Roskovensky, II (“Attorney Roskovensky”) represented Grandfather. On June 7, 2006, Grandfather went to Grandson's home and began yelling at Grandson. When Grandson told Grandfather to leave the premises, Grandfather struck Grandson in the face with a shovel handle. According to Grandson, Grandfather stated that Attorney Roskovensky told him that he could do anything he wanted because he was 70 years old.

The relevant procedural history of this case is as follows. Grandson commenced the instant action on May 31, 2007 by filing a praecipe for writs of summons directed to Grandmother, Attorney Roskovensky, and Grandfather. The docket entries reveal that, other than completing service of process on the defendants and the filing of a certificate of merit as to Attorney Roskovensky, no other actions were taken in this case until July 28, 2009 when the trial court issued notice of its intent to terminate the case pursuant to Pennsylvania Rule of Civil Procedure 230.2 (relating to the termination of inactive cases). In response, on September 21, 2009, Grandson filed a notice of intent to proceed. On February 7, 2011, Grandson filed his complaint. On March 24, 2011, Grandson filed an amended complaint. In mid-April 2011, Grandmother and Attorney Roskovensky filed preliminary objections in the nature of demurrers. On October 6, 2011, the trial court sustained Grandmother and Attorney Roskovensky's preliminary objections and dismissed Grandson's claims against those two defendants. Grandson requested that the trial court certify the October 6 order as a final order pursuant to Pennsylvania Rule of Appellate Procedure 341(c) ; however, the trial court denied that request.

We take judicial notice that on or about May 16, 2013, Grandfather died. SeeGoff v. Armbrecht Motor Truck Sales, Inc. , 426 A.2d 628, 630 n. 4 (Pa.Super.1980) (this Court may take judicial notice); cf. Pa.R.Evid. 201(b)(2), (c)(1) (a court may sua sponte take judicial notice of a fact which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”). No notice of death was filed and no personal representative was thereafter substituted as a defendant in Grandson's lawsuit against Grandfather. On December 4, 2013, the trial court issued notice of its intent to terminate the remaining case against Grandfather pursuant to Pennsylvania Rule of Civil Procedure 230.2. In response, Grandson filed a notice of intent to proceed on February 6, 2014. Thereafter, the trial court scheduled a status conference. At the conclusion of that status conference on February 19, 2015, the trial court ordered that the case be placed on the first available arbitration list after July 1, 2015. On March 23, 2015, Grandfather's counsel filed a motion seeking a judgment of non pros . On May 11, 2015, the trial court granted the motion and entered a judgment of non pros as to the claims asserted against Grandfather. This appeal followed.³

Grandson presents seven issues for our review:

1. Whether failure [by Grandfather's counsel] to file with the [trial c]ourt a [n]otice of [d]eath of a [p]arty or a [s]ubstitution of [p]ersonal [r]epresentative as required by [Pennsylvania Rule of Civil Procedure] 2355 prohibits the entry of a [judgment of n]on [p]ros for delay in the prosecution of this matter?

2. Whether [Grandfather's death] ... constitute[d] actual prejudice [that justified the trial court granting a judgment of non pros as to Grandson's claims against Grandfather because of the] delay in the prosecution of this matter?

3. Whether an immediate family member of a mentally ill relative who commits a violent assault upon the family member has a cause of action for professional negligence against the attorney who represented the mentally ill relative in his competency hearings, had actual knowledge of his mentally ill client's propensity for violence, intentionally interfered with the mentally ill client's mental health treatment, made misrepresentations to the [court] relative to [the] mentally ill client's mental health evaluations, and actively encouraged the mentally ill client to act out against his family members?

4. Does the Restatement of Torts (Second), Section [876], apply to the facts of this case where an attorney representing a mentally ill client with a history of violent acts provide[d] encouragement to his mentally ill client to engage in violent acts, and otherwise [interfered] with his client's mental health treatment?

5. Did [Grandson] state sufficient facts to plead a cause of action for concerted tort action [against Attorney Roskovensky]?

6. Did [Grandson] state sufficient facts to plead a cause of action for concerted tort action [against Grandmother]?

7. Whether the outrageous acts of [Grandfather, Grandmother, and Attorney Roskovensky] as stated in [Grandson's] complaint state a cause of action for exemplary and punitive damages?

Grandson's Brief at 6-7 (internal quotation marks omitted).⁴

In his first and second issues, Grandson contends that the trial court erred by granting a motion for non pros as to claims asserted against Grandfather. Prior to addressing these issues, however, we sua sponte consider whether the trial court possessed subject matter jurisdiction over the motion for non pros . SeeTurner Const. v. Plumbers Local 690 , 130 A.3d 47, 63 (Pa.Super.2015) (“[W]e can raise the issue of jurisdiction sua sponte [.]”). “It is hornbook law that as a pure question of law, the standard of review in determining whether a trial court has subject matter jurisdiction is de novo and the scope of review is plenary.” S.K.C. v. J.L.C. , 94 A.3d 402, 406 (Pa.Super.2014) (internal alteration, quotation marks, and citation omitted).

In order to understand this issue, it is necessary to examine the difference between standing, personal jurisdiction, subject matter jurisdiction, and a court's power.

“[T]he doctrine of standing ... is a prudential, judicially created principle designed to winnow out litigants who have no direct interest in a judicial matter. For standing to exist, the underlying controversy must be real and concrete, such that the party initiating the legal action has, in fact, been aggrieved.” Commonwealth, Office of Governor v. Donahue , 626 Pa. 437, 98 A.3d 1223, 1229 (2014) (internal quotation marks and citation omitted). In Pennsylvania, “[w]hether a party has standing to maintain an action is not a jurisdictional question.” In re Adoption of Z.S.H.G. , 34 A.3d 1283, 1289 (Pa.Super.2011) (per curiam ) (internal quotation marks and citation omitted).⁵ Thus, an issue relating to standing is waivable. SeeIn re Estate of Brown , 30 A.3d 1200, 1204 (Pa.Super.2011) (citation omitted).

Personal jurisdiction is “[a] court's power to bring a person into its adjudicative process[.]” Black's Law Dictionary (10th ed. 2014). Moreover, “personal jurisdiction is readily waivable.” In re Estate of Albright , 376 Pa.Super. 201, 545 A.2d 896, 902 (1988), appeal denied , 559 A.2d 33 (Pa.1989) ; see alsoFletcher–Harlee Corp. v. Szymanski , 936 A.2d 87, 103 (Pa.Super.2007), appeal denied , 598 Pa. 768, 956 A.2d 435 (2008) (issue relating to personal jurisdiction waived for failure to comply with applicable rules of court).

Subject matter jurisdiction “relates to the competency of the individual court, administrative body, or other tribunal to determine controversies of the general class to which a particular case belongs.” Green Acres Rehab. & Nursing Ctr. v. Sullivan , 113 A.3d 1261, 1268 (Pa.Super.2015) (citation omitted). “[S]ubject matter jurisdiction [is] not susceptible to waiver.” Commonwealth v. Jones , 593 Pa. 295, 929 A.2d 205, 208 (2007) (citation omitted).

“[Judicial authority or p]ower, on the other hand, means the...