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

TIMOTHY JOHNSON

Appellant

v.

MONRO MUFFLER BRAKE, INC. AND BRIAN RADIGAN : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 284 WDA 2019

Appeal from the Order Dated , February 11, 2019 , i n the Court of Common Pleas of Erie County , Civil Division at No(s): No. 12059 of 2016

.

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 16, 2019 Timothy Johnson appeals from the tria l court ’s order denying his request
to file a third amended c omplaint against Monro Muffler Brake, Inc

. Because the trial court granted Monro fi nal judgment on the merits before Mr. Johnson
tried to file a third amended complaint , the trial court no longer possessed jurisdiction over Monro. We therefore affirm

. Mr. Johnson was an employee of Monro, where he worked as a vehicle
mechanic with Brian Radigan

. According to Mr. Johnson , after he quit working
for Monro , Mr. Radigan repeatedly forg ed Mr. Johnson’s name and used his
Commonwealth

- issued license number to conduct vehicle inspections at
Monro

. Mr. Johnson initially sued Mr. Radigan in 2016 for fraud and identity
theft. In a sec ond amended complaint , Mr. Johnson also sought damagesJ

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from Monro under the doctrine of respondeat superior

. 1 After discovery closed, Monroe and Mr. Radigan moved for summary judgment, and the trial court grante d it

. Mr. Jo hnson appealed to this Court , but he did not challenge the trial court’s grant of summary judgment to Monro

. This Court left the portion of
the order dismissing the respondeat superior claim intact

. See Johnson v. Monro Muffler Brake, Inc. , No. 1794 WDA 2017, 2018 WL 4925651 (Pa. Super. 2018). We did, however, reverse the grant of summary judgment as
to Mr. Radigan and r emanded for further proceedings. See id. On remand, Mr. Johnson sought leave of court to file a third amended complaint against Mr. Radigan and Monro . This new complaint claimed that
Monro’s own actions constituted direct negligence

. The trial court grant ed Mr. Johnson’s request to amend his complaint against Mr. Radigan, but denied the request to amend against Monro . T h is appeal followed. 2 Initially, we note that the appeal would have been interlocutory since
claims against Mr. Radigan remained

. However, Mr. Johnson discontinued his
claims against Mr. Radigan

. 3 This action rendered the order denying Mr.

_________________ __________ ______ ____ _______
1 Latin, literally translating to “let the higher

- up answer .” “Under the doctrine of respondeat superior recovery is sought on the basis of vicarious liability , ” from an employer , for the unlawful conduct of its employees. Brezenski v. World Truck Transfer, Inc. , 755 A.2d 36, 39 (Pa. Super. 2000)

.

2 Both the trial court and Mr. Johnson complied with Pa.R.A.P. 1925.

3 Since he was dismissed, Mr. Radigan did not participate in this appeal.J

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Johnson leave of court to file a n amended complaint against Monro a f inal , appealable order.
Mr. J ohnson raises one issue in this appeal :
Whether the dismissal of the respondeat superior claim by the Superior Court in the previous appeal bars [ him ] f rom amending the Complaint to allege fraud directly committed by [Monro], and conspiracy to commit fraud, against [ Mr. Johnson] ?

Johnson’s Brief at 5. Before addressing that question , we must first determine
whether the trial court had jurisdiction over Monro during the remand

. Q uestions of jurisdiction are non - waivabl e, and this Court may raise
them sua sponte

. T he Supreme Court of Pennsylvania has said:

as a pure question of l aw, the standard of review in determining whether a court has subject matter jurisdiction is de novo , and the s cope of review is plenary. Whether a court has subject matter jurisdiction over an action is a fundamental issue of law , which may b e raised at any time in the course of the proceedings, including by a reviewing court su a sponte

. Further, subject matter jurisdiction may not be conferred by consent of the parties and a defect of such jurisdiction may not be waived.

In re Administrative Order No. 1 - MD - 2003 , 936 A.2d 1, 5

- 6 (Pa. 2007) (citations omitted).
When a d efendant i s dismissed from a law suit , once the order becomes final, the trial court loses its jurisdiction over that defendant . For example, i n Motley Crew, LLC v. Bonner Chevrolet Co., Inc. , 93 A.3d 474 (Pa. Super. 2014), appeal denied , 104 A.3d 526 ( Pa. 2014), this Court stated that , in such

cases, “there no longer is an action pending before the trial court. ” Id. atJ

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476 . And “ if there is no action pending before a court, there is no matter over
which [ that ] court can or may exert jurisdiction.” Id.
W e have s aid that, if summary judgment disposes of all claims against a defendant, that defendant is “released from litigation. ” French v. United
Parcel Service , 547 A.2d 411, 414 ( Pa. Super. 1988). Indeed, it is hornbook
law that a defendant who wins complete su mmary judgment has “ thereby
terminate [d] the litigation. ” 6 Standard Pa. Practice 2d § 32.8 at 152 (emphasis added)

. C omplete summary judgment, once final, ends the case against that defendant. As far as that def endant is concerned, there is no longer an action pending against it in a court of competent jurisdiction

. We must therefore determine whether the summary judgment that the trial court granted to Monro was a final judgment. Generally speaking, a

“ judgment entered in adverse proceed ings becomes final if no appeal
therefrom is filed within thirty days. ” Ins. Co. of North Am. v. Bishop , 529 A.2d 33, 36 (Pa. Super. 1987) (some punctuation omitted) (quoting Simpson
v. Allstate Ins. Co. , 504 A.2d 335, 337 ( Pa. Super. 1986) ( en banc ) ).
The trial court granted Monro summary judgment on the only claim Mr.
Johnson made against it, on November 17, 2017. See Trial Court Order and Opinion, 11/17/18. Th at order also granted summary judgment on all claims against Mr. Radigan. “A final order is any order that (1) disposes of all claims and of all parties . . . .” Pennsylvania Rule of Appellate Procedure 341(a). Because the trial court’s November 17, 2017 order disposed of all the claimsJ

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against both Defendants, it was final and, therefore, immediately appealable

. See, e.g., Harahan v. AC & S, Inc. , 816 A.2d 296, 297 (Pa. Super. 2003). Although Mr. Johnson appealed the November 17, 2017 order as to Mr.
Rad igan, he did not appeal the grant of summary judgment to Monro. T hus, summary judgment for Monro became a final judgment on the merits 30 days after the trial court granted it

– i.e. , on December 18, 2017.
When Mr. Johnson tried filing his third amended complaint against
Monro over el e ven month s later, Monro was no longer a party to this case.
See Johnson’s Motion to Amend Complaint, 11/30/18, at 1. Accordingly, the
Court of Common Pleas of E rie County had no jurisdiction over Monro on remand. Simply stated, although the court denied Mr. Johnson’s motion , that
court had no authority to grant Mr. Johnson leave to file a third amended complaint against Monro , even if it wanted to.

“ [ W ] e may affirm the trial court’s order on any valid b asis.” Plasticert,
Inc. v. Westfield Ins. Co. , 923 A.2d 489, 492 (Pa. Super. 2007). Because
Mr. Johnson filed a motion for leave to amend against Monro in an action in
which Monro had already secured final summary judgment and dismissal , Mr.
Johnson’s ap peal from the order denying his motion is merit less

. Order affirmed

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/16/2019