J

- A02026

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

JAY R. MCLAUGHLIN INDIVIDUALLY AND D/B/A MCLAUGHLIN LOGGING

Appellants

v.

ZOOK MOTORS INC. :

:

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 182 WDA 2022

Appeal from the Order Entered January 27, 2022 In the Court of Common Pleas of McKean County

Civil Division at No. 918 C.D. 2019

BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J. *

MEMORANDUM BY MURRAY, J.: FILED: FEBRUARY 24, 2023

Jay R. McLaughlin (Appellant)

, individually and d/b/a McLaughlin

Logging

, appeals from the order dismissing his complaint against Zook Motors,

Inc. (Zook), for failure to join Laura Turner (Turner) and Sando Ferrucci

(Ferrucci) as indispensable parties

. 1 We affirm.

The history of this case is long and convoluted. In December 2017,

Appellant and Ferrucci visi ted Zook to purchase a truck for their future

business

. While a t Zook, they negotiated the purchase of a truck for

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 Turner and Ferrucci are now married. See Trial Court Opinion, 3/28/22, at 2 (unnumbered).J

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$58,094.40. 2 Appellant subsequently wired the purchase funds to Zook’s

account

. Zook thereafter transferred sole title and possession of the truck to

Turner. As a result, Appellant filed a civil complaint against Zook alleging

causes of action for (1) breach of contract; (2) civil conspiracy; (3)

conversion; (4) negligence; and (5) punitive damages. Complaint, 3/10 /20.

O n May 4, 2020, Zook filed an Answer and New Matter.

[Zook] alleged that [Appellant] negotiated the truck purchase along

with another individual, [] Ferrucci, and that the truck was to be acquired for a joint business venture between [Appellant] and Mr.

Ferrucci. [Zook] further alleged that the vehicle was then

transferred to [] Turner at the express direction of [] Ferrucci, who

acted with the apparent authority of [Appellant]

, and that [Zook]

acted in good faith and in reliance on the apparent authority of []

Ferrucci.

On May 22, 2020, [Appellant] filed a Response to [Zook ’ s] New

Matter in which [Appellant] denied that the decision to purchase

the truck was jointly made, and likewise denied that [] Ferrucci

acted with any authority when directing that the truck be

transferred to [] Turner.

Trial Court Opinion, 3/28/22 , at 2 (paragraph designations omitted).

On August 20, 2020, Zook filed a complaint to join Ferrucci and Turner

(collectively, A dditional D efendants) as defendants (hereafter, complaint to

join) . Zook claimed Appellant ’ s “ losses and damages, if any, are the result of

acts or omissions of the Additional Defendants. ” Complaint to Join, 8/20/20,

¶ 3. Zook explained :

_________________ __________ ______ ____ _______

2 Appellant and Ferrucci intended to use the truck in a wastewater treatment

business.J

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Several days after payment of the purchase funds, and with no company name or business location having been established, [] Ferrucci, acting with apparent authority of [Appellant] , advised

Zook

... that the truck would be temporarily titled in the name of [] Turner, an associa te of Ferrucci.

Id. ¶ 18. According to Zook, it transferred and titled the vehicle to Turner in

good faith

. Id. ¶¶ 19

- 20. Zook asserts, should it be found liable, Additional

Defendants are jointly and severally liable. Se e generally i d. (Prayers for

Relief).

Appellant responded by filing a motion to quash the complaint to join

and compel discovery. Motion to Quash and Compel , 8/28/20. Appellant

argued Zook untimely filed its complaint to join “ 242 days after service of the

complaint, ” without the consent of Appellant or the trial court. Id. ¶ ¶ 11, 17.

Appellant maintained Zook failed to show “reasonable justification for the

delay in commencing joinder proceedings.” Id. ¶ 21. Appellant averred that

joinder of Additional Defendants would cause him prejudice. Id. ¶ 20.

On October 2, 2020, Zook moved to dismiss its c omp laint to j oin and

discontinue its action against A dditional D efen d ants. Motion to Dismiss,

10/2/20. Zook also notified the court that Additional Defendants filed a

bankruptcy proceeding in New York State. Id. ¶ 24.

Separately, Zook moved to dismiss Appellant ’ s c omplaint for failure to

join Additional Defendants as indispensable parties. Id. ¶ 27. Zook explained

that in an unrelated civil action, McLaughlin had identified Ferruc c i and Turner

as participants in the wastewat er treatment business. Id. at ¶¶ 18

- 20J

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(referencing A dvanced Water Services, LLC et al. v. Ferrucci and Turner

,

No. 2019

- 10918 )

.

T he trial court scheduled a hearing on Zook ’ s m otion to d ismiss its

complaint to join for November 13, 2020. On November 9, 2020, however,

the trial court deemed Zook ’ s m otion to d ismiss uncontested and granted the

motion with prejudice . Order, 1 1 /9/20.

On November 12, 2020, Appellant requested reconsideration of the

court’s November 9, 2020, order. T he trial court granted reconsideration and

amended its November 9, 2020, order to provide, in part :

It appearing that [Zook’s] Motion to Discontinue as to Additional Defendants would result in the exclusion of indispensable parties, that motion is DENIED without prejudice.

Trial Court Order, 12/7/20, at 3 (unnumbered ) (emphasis added ).

On December 23, 2020, Appellant filed a motion to amend his complaint.

Appellant ’s proposed amended complaint omitted the counts for conspiracy

and conversion. See generally Amended Complaint, 12/23/20. Importantly,

Appellant again failed to name Turner or Ferrucci as parties

. See id.

Appellant also filed a motion to quash Zook ’ s complaint to join. Motion to

Quash, 12/23/20.

On January 27, 2021, the trial court granted Appellant ’ s motion to

amend complaint. Order, 1/27/21. T he court scheduled a hearing on

Appellant ’ s motion to quash the c omplaint to j oin for March 5, 2021. In the

interim, o n February 5, 2021, Zook petitioned to withdraw its motion toJ

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discontinue the complaint t o join

. Petition to Withdraw (Discontinuance),

2/5/21.

On February 12, 2021, after a hearing, the trial court addressed the

pending motions. The court ordered:

[Zook ’ s] Motion to Dismiss [Appellant ’ s] Complaint is DISMISSED

without prejudice. As the parties have agreed to conduct limited discovery as to the question of indispensable parties, dismissal of the Complaint would be inappropriate.

... [Zook ’ s] Complaint to Join Additional Defendants shall be

deferred while the parties conduct limited discovery as to the issue of indispensable parties. Upon completion of limited discovery, the parties shall be prepared to argue this issue before the Court.

... [Zook ’ s] Petition to Withdraw Motion to Discontinue Action Against Additional Defendants is moot. This Court, in its Order dated December 7, 2020, denied said motion without prejudice. Therefore, a withdrawal of the Motion is unnecessary. Despite the

fact that said Motion was alrea dy denied, [Zook] may withdraw the Motion if they so choose. To the extent that any confusion
exists, [Zook’s] Complaint to Join Additional Defendants has not

been discontinued and remains outstanding.

At this time, two (2) motions remain outstanding: (1) [Appellant’s] Motion to Quash [Zook’s] Complaint to J oin Additional Defendants and (2) [Zook’s] Complaint to Join

Additional Defendants. Decision on these motions shall be

deferred until the conclusion of the parties ’ limited discovery or until further hearing before the Court.

Order, 2/12/21, at 2 (unnumbered).

T he trial court ordered Zook to schedule depositions of the Additional

Defendants . Order, 3/5/21. A few days later, the trial court scheduled a

status conference for June 11, 2021. On April 15, 2021, without objection,J

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the trial court permitted Appellant to again amend his complaint. T he parties

stipulated to the completion of disc overy by July 15, 2021. Order, 5/14/21.

On August 26, 2021, Zook filed a motion to dismiss Appellant’s

complaint for nonjoinder of indispensable parties, along with a brief in support

of its motion. Motion to Dismiss, 8/26/21. Zook’s m otion alleged:

At the time of the transaction for the vehicle in question, [Appellant] and his wife were involved in a business venture with [] Ferrucci and [] Turner, namely a partnership involving water

treatment services.

• In December, 2017, [Appellant] and [] Ferrucci went together to meet a sales representative at [a] Zook [] dealership regarding the purchase of the vehicle.

• The Zook [] representative understood the vehicle was being purchased as part of the business venture, and that an agency relationship existed between [Appellant] and Ferrucci.

• Funds were wired from [Appellant’s] bank account to Zook [] to pay for the vehicle.

• Title to the 2016 Ford F

- 350 was transferred by Zook [] to []

Turner.

Id. ¶ 6.

Appellant responded

, filing a “ Rule to Show Cause ” 3 why Zook should

not be held in contempt for failing to comply with the trial court’s discovery

deadline

, and for filing its motion to dismiss beyond the deadline. Rule to

Show Cause, 8/27/21. The trial court dismissed Zook’s untimely filed motion

_________________ __________ ______ ____ _______

3 Appellant did no t petition for a rule to show cause as provided in Pa.R.C.P.

206. 4

– 206. 6.J

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on September 1, 2021. The court a lso scheduled a hearing on Appellant’s rule

to show cause for October 8, 2021 , the same day as its status conference.

Zook filed a motion for reconsideration, which the trial court granted. Order,

9/28/21. The trial court advise d that on October 8, 2021, the court would

hear argument on all outstanding motions

. Id.

After the October 22, 2021, hearing, the trial court filed a memorandum

and order deeming Additional Defendants indispensable parties and directing

that Appellant join them as parties . Trial Court Order, 10/22/21 , ¶¶ 1

- 2.

However, the memorandum and order were not served on the parties.

On December 7, 2021, Appellant moved for reconsideration of the trial

court ’ s October 22 , 2021, order. T he trial court granted relief :

[Appellant ’ s] counsel having averred in a motion filed this date that he did not receive a copy of the [c] ourt ’ s Memorandum and Order dated October 22, 2021, directing [Appellant] to join []

Turner and [] Ferrucci as additional parties, and it appearing that [Zook ’ s] counsel likewise did not receive a copy of the [c] ourt ’ s said Memorandum and Order, and that the date for [Appellant ’ s] compliance has long passed and [Appellant] has been unduly prejudiced, it is ORDERED that [Appellant] shall not later than January 6, 2022 comply with this [c] ourt ’ s earlier directive to join [ Additional Defendants]

.

Order, 12/8/21 (emphasis added). The trial court attached and filed its

October 22, 2021, memorandum and order deeming Turner and Ferrucci

indispensable parties. See id. (attachment).

Appellant filed a Motion for Clarification on December 29, 2021.

Appellant claimed there was no proof “ why [Additional Defendants] are

indispensable or as to what cause of action [Appellant] has against eitherJ

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Fer r ucci or Turner. ” Motion for Clarificati on, 12/29/21, ¶ 10. The trial court

granted clarification

, and direct ed Appellant to its October 22, 2021,

memorandum and order. Order, 1/12/22, ¶ 3. The court expressly warned:

The [c] ourt has found Ferrucci and Turner to be indispensable parties to this action. Failure to join indispensable parties is a jurisdictional defect. See Pilchesky v. Doherty

, 941 A.2d 95, 101 (Pa. Commw. Ct. 2003). When a court finds that there has been a failure to join indispensable parties, they must either be joined or the action dismissed. See Pa.R.C.P. No. 1032(b). The [c] ourt shall not advise [Appellant] on how best to litigate this

case; the indispensable parties must be joined or the action

will be dismissed.

Id. ¶ 4 (emphasis added). 4

O n January 27, 2022, the trial court dismissed Appellant ’ s amended

complaint for failure to join indispensable part ies . Order, 1/27/22. Appellant

timely filed a notice of appeal. Appellant and the trial court have complied

with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

Whether the lower court erred as a matter of law and/or committed an abuse of discretion when it granted [Zook’s] Motion

to Dismiss [Appellant’s] Complaint for failure to join indispensable parties?

Appellant’s Brief at 4 (capitalization modified)

.

Initi ally, we observe that t he trial court dismissed Appellant’s complaint

for lack of subject matter jurisdiction

, based upon the nonjoinder of

_________________ __________ ______ ____ _______

4 C ounsel for Additional Defendants entered his appearance on January 24,

2022.J

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indispensable parties. “ The failure to join an indispensable party is a non

waivable defect that implicates the trial court ’ s subject matter jurisdiction. ”

Turner v. Estate of Baird

, 270 A.3d 556, 560 (Pa. Super. 2022) (citation

omitted)

. “ Subject matter jurisdiction raises a question of law for which our

standard of review is de novo and our scope of review is plenary. ” Id. (citation

omitted). “ [A] judgment or decree rendered by a court which lacks jurisdiction

of the subject matter or of the person is null and void. ” Id.

Appellant first explains:

It is not the purpose of this Brief to challenge the lower court’s finding that [] Ferrucci and [] Turner are indispensable parties. They are. It is the unfortunate purpose of this Brief to demonstrate that the lower court abused its discretion in ordering the Appellant to join them, as additional defendants, not later than January 6, 2021.

Appellant’s Brief at 21 (capitalization modified) . Appellant argues “the right

to join additional defendants is available only to a defendant, or to an

additional defendant; it is not available to a plaintiff. ” Id. at 25. According

to Appellant, Pa.R.C. P. 2253 required Zook to file its complaint to join

additional defendants no later than 60 days after Appellant’s initial pleading. 5

_________________ __________ ______ ____ _______

5 Rule 2253 provides, in relevant part :

[N] either a praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by complaint, shall be

filed later than

... sixty days after the service upon the original

defendant of the initial pleading of the plaintiff or any amendment

thereof

....

Pa.R.C.P. 2253 (a) (1)

.J

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Appellant’s Brief at 22 . Appellant claims Zook’s complaint to join was filed

four months late

. I d. Thus, Appellant concludes the trial court improperly

determined that Zook’s complaint to join “has not been discontinued and

remains outstanding.” Id. at 24 (emphasis omitted).

Appellant points out that Additional Defendants filed a motion to

continue a scheduled st atus conference, prior to being pled into the action.

Id. at 25. According to Appellant, the trial court granted their motion,

referring to Ferrucci and Turner as “ additional defendants ” both in the caption

and body of the order. Id. Appellant asse r ts the term “additional defendants”

refers only to persons who may be joined as defendants in a 3 rd

– party complaint filed in the action by a defendant, or another defendant, in accordance with the Joinder Rules.

Id. at 24 (citing Lower Frederick Twp. v. Clemmer

, 543 A.2d 502 (Pa.

1988) ). Appellant argues t he trial court’s order required h e “ d o something,

as plaintiff, that he could not do

– join an additional defendant.” Id. at 26

(capitalization modified). Appellant insists :

All the lower court had to do to resolve the matter was to permit the late filing of [Zook’s] Complaint to Join Addit ional Defendants.

In that event, indispensable parties would have been properly joined, as additional defendants, in August 2020. The way the lower court handled it, the joinder of Ferrucci and Turner, as additional defendants, was not even directed unti l over a year

later.

Id. at 27.

Appellant also argues the trial court’s December 7, 2021, order did not

afford him 30 days to comply with its joinder directive. Id. A ccording toJ

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Appellant, the four

- year statute of limitation for the breach of contract action

as to Additional Defendants, expired on December 21, 2021. Id. As a result,

Appellant had only two weeks to effect joinder. Id. at 27

- 28. Finally,

Appellant cl aims the trial court never expressly dismissed or nullified Zook’s

complaint to join additional defendants. Id. at 29.

Zook counters that it filed its complaint to join to Appellant’s first

complaint. Appellee’s Brief at 13. Since then

, Zooks asserts, Appellant

amended its complaint three times. Id. Zook contends the filing of amended

complaints rendered its complaint to join moot. I d. at 13

- 14.

Additionally, Zook emphasizes Appellant repeatedly moved to quash the

complaint to join. Id. at 14. Ac cording to Zook, Appellant

s hould be estopped from now asserting the lower court abused its discretion in not permitting [Zook] to complete the joinder of

“Additional Defendants.”

Id. Zook agrees with the trial court that Appellant’s failure to join

indispensable parties deprived the court of subject matter jurisdiction. Id. at

15. Zook further disputes Appellant’s characterization of the trial court’s order

as refer enc ing Turner and Ferru cci as “ additional defendants. ” Id. at 17.

Rath er, Zook claims the trial court referred “to the need for [Appellant] to add

indispen s able parties as defendants.” Id.

Our review is guided by the Rules of Civil Procedure. Rule of Civil

Procedure 2232(c) provides:

At any stage of an action, the court may order the joinder of any additional person who could have joined or whoJ

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could have been joined in the action and may stay all proceedings until such person has been joined. The court in its discretion may proceed in the action although such person has not been made a party if jurisdiction over him cannot be obtained and he is not an indispensable party to the action.

Pa.R.C.P. 2232(c) (emphasis added)

.

Appellant relies on Rule 2553 to argue that a plaintiff may not join

additional defendants. However, i n Clemmer , our Supreme Court contrasted

Rule 2232(c) with Rules 2251

– 22 57 , which prescribe the procedure s by

which a defendant may join additional defendants:

These rules, however, do not speak to the situation of the instant case where a plaintiff is ordered to add another person as a party defendant because that other person is an indispensable party. A reading of Rules 2251 t o 2274 reveals that they are intended to apply to defendants who wish to join an additional defendant. To illustrate this intent, we quote from Rules 2252, 2253, 2254, 2255

and 2256.

Rule 2252 sets forth who may join an additional defendant in a

lawsuit. Rule 2252(a) begins: “ In any action the defendant or any additional defendant may , as the joining party, join as an additional defendant any perso n .... ” (Emphasis supplied.)

Rule 2253 sets forth the time to file a pra e cipe for a writ or a complaint. Rule 2253 provides: “ Neither praecipe

... nor a complaint

... shall be filed by the original defendant or an additional defendant later than sixty (60) days

.... ” (Emphasis supplied.)

Rule 2254 provides for the service of process in joining an

additional defendant. Rule 2254(a) begins: “ If the venue of the action by the plaintiff against the defendant is properly laid, the

defendant or any additional defendant may serve an additional

defendant in any other county

.... ” (Emph asis supplied.)

Rule 2255 sets forth the procedure in joining an additional

defendant. Rule 2255(a) merely states that the procedure between the joining party and the additional defendant “ shall beJ

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the same as though the party joining the additional defe ndant were a plaintiff and the additional defendant were a defendant. ” Rule 2256 addresses the question of counterclaims. Rule 2256(c) provides: “ A party against whom a counterclaim is asserted shall have the same right to join any one as an additional p arty that is given to a defendant in Rule 2252

. ” (Emphasis supplied.)

Rules 2251

- 2257, by their very terms, are designed to apply to the situation where a defendant has grounds to add an additional defendant, or where one added as an additional defendant wants

to add another additional defendant. The only time the rules are applicable to a plaintiff is where a plaintiff is counter

- sued on a counterclaim and that plaintiff, who becomes a counterclaim defendant, wishes to join another as an additional defendant in

the counterclaim.

Clemmer

, 543 A.2d at 508 (emphasis in origin al ).

O ur Supreme Court further observed

,

the chancellor acted pursuant to Rule 2232(c) and ordered the joinder of Dawn Lenore Kratz as an indispensable party. The

Rules of Procedure do not contain specific provisions outlining a procedure where a plaintiff is required to add

another person as a party defendant. In the absence of a mandated procedure, trial courts have adopted various methods

to effect a proper joinder of an additional party unde r
circumstances other than the traditional situation of a defendant adding an additional defendant which is covered by Rules 2251,

et seq.

....

Id. at 509 (emphasis added)

. Thus, the Supreme Court recognized a plaintiff

may join “another person as a party defendant.” Id.

I n Belle v. Chieppa

, 659 A.2d 1035 (Pa. Super. 1995), this Court

approved the plaintiffs ’ filing of a petition to amend their complaint to join

additional defendants

, quoting the above language in Clemmer

. Id. at 1039 ;

see also Meadows v. Goodman , 993 A. 2d 912, 914

- 15 (Pa. Super. 2010)J

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( approving

, as a means for joining an additional party

, plaintiffs’ motion to

amend the complaint)

.

In the instant case, the trial court ordered Appellant to join Turner and

Ferrucci as indispensable parties:

Having determined [] Ferrucci and [] Turner to be indispensable, the [t] rial [c] ourt next considered what impact that

determination had on the case at hand. Failure to join indispensable parties is a jurisdictional defect. See Pilchesky v. Doherty , 941 A.2d 95, 101 (Pa. Commw. Ct. 2008). The issue of indispensable parties may be raised at any point in the proceedings, and cannot be waived. Id.

Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject

matter or that there has been a fai lure to join an indispensable party, the court shall order that the action

be transferred to a court of the Commonwealth which has jurisdiction or that the indispensable party be joined, but if that is not possible

, then it shall dismiss the action.

Pa.R.C.P. No. 1032(b). In accordance with this Rule, the [t] rial [c] ourt [o] rdered that the indispensable parties be joined, and

gave [Appellant] ample opportunity to do so. The parties were well aware that joinder of indispensable parties was an issue i n this case, as it was initially brought up well over a y ear ago. Having ultimately determined the parties to be indispensable, but knowing that such a finding would likely put [Appellant] out of court, the [t] rial [c] ourt permitted interlocutory appeal o f its [m] emorandum and [o] rder pursuant to 42 Pa.C.S.A. § 702(b). [Appellant] chose not to appeal. Therefore, the [t] rial [c] ourt had no alternative but to dismiss the action, as clearly set forth in Pa.R.C.P. No. 1032(b).

Trial Court Opinion, 3/28/22 , at 7

- 8 (unnumbered). Discerning no error, we

agree with the trial court’s reasoning and conclusion. See id. We therefore

affirm the trial court’s order dismissing Appellant’s complaint with prejudice.

Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/24/2023