Driscoll v. Arena

• Decision Date: 17 June 2019
• Docket Number: No. 228 EDA 2017,No. 286 EDA 2017,No. 226 EDA 2017,226 EDA 2017,228 EDA 2017,286 EDA 2017
• Parties: Robert W. DRISCOLL, Jr., Appellant v. John A. ARENA, Appellee Robert W. Driscoll, Jr. Appellant v. John A. Arena, Appellee Robert W. Driscoll, Jr., Appellant v. Thomas Arena, Appellee
• Court: Pennsylvania Superior Court

213 A.3d 253

Robert W. DRISCOLL, Jr., Appellant

v.John A. ARENA, Appellee

Robert W. Driscoll, Jr. Appellant

v.John A. Arena, Appellee

Robert W. Driscoll, Jr., Appellant

v.Thomas Arena, Appellee

No. 226 EDA 2017

No. 228 EDA 2017

No. 286 EDA 2017

Superior Court of Pennsylvania.

Argued October 23, 2018

Filed June 17, 2019

Gerard M. McCabe, and Michael J. Duffy, Philadelphia, for appellant.

Joseph D. Mancano, Philadelphia, for appellees.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE, DUBOW, and MURRAY, JJ.

OPINION BY STABILE, J.:

Appellant, Robert W. Driscoll, Jr., appeals from the orders entered December 14, 19, and 20, 2016, granting the petitions of Appellees, Thomas Arena and John A. Arena, to strike confessed judgments. We vacate and remand.

Appellant filed confessed judgments in these three consolidated matters on May 25, 2016 and served Appellees, who are located in Massachusetts, on June 1, 2016. The confessed judgments arose from Appellees' default on three promissory notes—two executed (one by each Appellee) on March 24, 2005 and one executed (by Appellee John A. Arena) on October 27, 2009. On June 22, 2016, Appellees retained local counsel in Philadelphia. On June 28, 2016, Appellees, through Massachusetts counsel, filed a notice of removal in the United States District Court for the District of Massachusetts. Massachusetts counsel attempted to send notice of the removal to the Philadelphia County Court of Common Pleas but inexplicably sent the notice to the wrong address.¹ The certified dockets do not reflect receipt by the trial court of any notice of removal. There is no indication in the record that Appellees' Massachusetts counsel was admitted to practice in Pennsylvania, or admitted pro hac vice for these cases.

Appellees' removal petition was improper for at least two reasons. Pursuant to the federal removal statute, Appellees should have filed the removal petition in the Eastern District of Pennsylvania, where the underlying state action was pending: "A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal[.]" 28 U.S.C. § 1446(a).

Further, Appellees' failure to serve the state court was improper:

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

28 U.S.C. § 1446(d). There is no indication in the record that Appellees attempted to confirm whether the Philadelphia County Court of Common Pleas received the removal notices. There is no indication that the record was forwarded to the federal court, and the common pleas court continued to accept Appellant's filings.

Appellant served notice of writs of execution on June 29, 2016 and filed praecipies for writs of execution on August 18, 2016. On September 1, 2016, the Massachusetts federal court issued a remand order. Appellees, by and through Philadelphia counsel, filed petitions to strike the confessed judgments on September 23, 2016. In the orders on appeal, the trial court granted Appellees' petitions reasoning that Appellant's confessed judgments failed to comply with the applicable four-year statute of limitations set forth at 42 Pa.C.S.A. § 5525(a)(8).² On appeal, Appellant claims Appellees' petitions to strike were untimely, given their ineffective effort to remove this matter to federal court in Massachusetts. He also claims that a statute of limitations defense, if one exists, renders the confessed judgments voidable, but not void, and therefore is grounds for opening the judgments, but not striking them off. Finally, Appellant argues that the confessed judgments were sealed instruments subject to the twenty-year limitations period set forth at 42 Pa.C.S.A. § 5529(b)(1).³

We conclude that Appellees' petitions were untimely, and therefore we vacate the orders striking the confessed judgments. Rule 2959 of the Pennsylvania Rules of Civil Procedure provides that "[i]f written notice [of the writ of execution] is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition to strike the judgment shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied." Pa.R.C.P. 2959(a)(3). Appellant filed writs of execution and served written notice in accord with Rule 2959(a)(3) on June 29, 2016. Appellees filed their petitions to strike on September 13, 2016, well beyond the thirty-day deadline. Appellees' petitions were therefore untimely unless they can establish "compelling reasons" for the delay. The reason for the delay in this case is Appellees' disregard for the federal removal statute.

At a status conference on July 19, 2016, the Federal District Court for the District of Massachusetts sua sponte raised the issue of Appellees' removal to that district rather than the Eastern District of Pennsylvania. Appellant's Response to Thomas Arena's Motion to Strike, 11/18/16, at Exhibit N, p. 2. "The appropriate district court for removal is the Eastern District of Pennsylvania. The parties have not made any persuasive showing that this Court qualifies under the statute. Thus, removal to this Court is not permitted." Id.

In support of their arguments that they had compelling reasons for their delay, Appellees assert they "had every reason to believe that the Court of Common Pleas had lost jurisdiction over the cases unless and until the matters were remanded." Appellees' Brief at 32. They claim the failure to notify the Philadelphia County Court of Common Pleas of the removal petition was a mere "clerical error involving Massachusetts counsel." Id. Massachusetts counsel apparently obtained the wrong address by running a Google search for "Philadelphia court of common pleas." Id. at 33. We find these excuses unavailing. Appellees obtained local counsel in Philadelphia before they filed their removal petition. We can conceive of no reason, let alone a compelling one, why Appellees' Massachusetts counsel would fail to coordinate with Philadelphia counsel regarding a notice of removal of an action pending in Philadelphia. Likewise, we can conceive of no reason, let alone a compelling one, why any lawyer with access to the Internet could not find the appropriate filing address, nor do we understand Appellees' failure to follow up and ensure the court received the removal notice. Furthermore, even if Massachusetts counsel was unaware of the error regarding the notice of removal, removal to the District of Massachusetts, rather than the Eastern District of Pennsylvania, was facially improper under the plain text of the federal removal statute, as the District Court explained. Appellees' failed removal attempt was the result of several errors or counsel, and we cannot conclude that those mistakes provided a compelling reason for noncompliance with Rule 2959(a)(3).⁴ We observe that the trial court did not make any detailed findings on this issue, noting only that Appellees' "error" could not defeat their petitions because the underlying judgments were void. Trial Court Opinion, 12/13/16, at 12 n. 37. Regardless, the facts pertaining to Appellees' failed removal attempt are not in dispute. We have concluded, as a matter of law, that the undisputed facts do not constitute compelling reasons for untimeliness under Pa.R.C.P. 2959(a)(3).

We now turn to whether the judgments were void or merely voidable. In M & P Mgmt., L.P. v. Williams , 594 Pa. 489, 937 A.2d 398, 401 (2007), our Supreme Court held that a void judgment, such as a judgment entered where the court lacks subject matter jurisdiction, cannot be made valid by the passage of time. This case is inapposite, because the trial court's subject matter jurisdiction is not at issue. Rather, Appellees assert that Appellant filed the confessed judgments after the applicable statute of limitations expired. The statute of limitations is an affirmative defense, and it is waivable. Pa.R.C.P. 1030(a) ; Griffin v. Central Sprinkler Corp. , 823 A.2d 191, 195 (Pa. Super. 2003). Assuming without deciding that Appellant failed to file the confessed judgments within the applicable limitations period, that failure did not excuse Appellees' noncompliance with Rule 2959(a)(3).

On the question of void versus voidable judgments, this Court has written that "[b]y labelling a judgment ‘defective’ or ‘irregular’ or ‘invalid’ one does not dispose of the ultimate issue of whether the defect, irregularity or invalidity renders the judgment void or voidable, but rather merely begs the question." Keiper v. Keiper , 343 Pa.Super. 256, 494 A.2d 454, 456 (1985). A void judgment is one that is "of no effect, potency or value, [and] irretrievably and incurably lost." Id. Where the judgment is voidable, the defendant must act, or the judgment will stand on the record as valid. Id. at 456-57. Instantly, Appellees' statute of limitations defense, even if apparent from the face of the record,⁵ does not render the judgments void.

Appellees cite no law holding the applicable limitations period in this case was nonwaivable, or that Appellant's alleged failure to timely file the confessed judgments deprived the trial court of subject matter jurisdiction. The thirty-day deadline in Pa.R.C.P. 2959(a)(3) applies whether the petition seeks to strike or open a confessed judgment. Pa.R.C.P. 2959(a)(3). The Rule is explicitly mandatory, stating that a petition "shall be filed within thirty days" and that, absent compelling reasons, an untimely petition "shall be denied."⁶ Appellees did not file their petitions on time, and did not offer compelling...