J-A13007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KIRSIS DELA-CRUZ 

Appellant

v.

OMAR CABAN AND JOVAN ROLON

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 389 EDA 2021

Appeal from the Order Entered January 15, 2021

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): No. 190700365

BEFORE: OLSON, J., DUBOW, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED JULY 19, 2022

Appellant, Kirsis Dela-Cruz, appeals from the order entered on January 

15, 2021, which granted the motion for judgment on the pleadings filed by 

Omar Caban and Jovan Rolon (hereinafter, collectively, “the Defendants”). 

We vacate and remand.

On July 2, 2019, Appellant filed a complaint against the Defendants, 

which sounded in negligence. Appellant averred that, on July 14, 2017, 

defendant Omar Caban (hereinafter “Defendant Caban”) was operating a 

Honda Ridgeline automobile, which was owned by defendant Jovan Rolon

(hereinafter “Defendant Rolon”). Appellant’s complaint declared: 

7. On or about July 14, 2017, at approximately 8:30 p.m., 

[Appellant] was operating a vehicle which at or near the 

intersection of Lehigh and Aramingo Avenues, Philadelphia, 

[Pennsylvania], was struck by the above described Honda 

Ridgeline, causing [Appellant] injuries and damages the 

details of which are set forth hereinafter. 
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8. The carelessness, negligence and recklessness of the 

[D]efendants consisted of any or all of the following:

(a) Failing to have the aforementioned vehicle under 

proper and adequate control;

(b) Operating said motor vehicle without keeping a proper 

lookout for persons, objects, and road and traffic 

conditions;

(c) Failing to maintain a safe, proper and adequate speed 

under the circumstances;

(d) Operating said motor vehicle without due regard for 

rights, safety and position of [Appellant] herein, at the 

point aforesaid;

(e) Going through a red light;

(f) Failing to obey a traffic control device;

(g) Being otherwise careless and negligent under the 

circumstances;

(h) Failing to comply with various ordinances of the City 

of Philadelphia and statutes of the Commonwealth of 

Pennsylvania pertaining to the operation of motor 

vehicles upon public highways; and

(i) Any and all other acts of negligence, carelessness or 

recklessness which may be otherwise proven at the time 

of trial.

9. As a direct and proximate result of the negligence, 

carelessness and/or recklessness of [the Defendants, 

Appellant] has sustained severe and painful injuries including 

but not limited to: Protruding disks at L4-5 and L5-S1, knee 

sprain, lumbosacral and cervical strain and sprain. She has 

suffered other serious orthopedic, neurological and soft tissue 

injuries, the full extent of which have not yet been 

ascertained.
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10. As a further direct and proximate result of the negligence, 

carelessness, and/or recklessness of [the Defendants, 

Appellant] has been and may be in the future required to 

receive and undergo medical treatment and care and have 

expended and may continue to expend in the future, various 

and diverse sums of money for the aforementioned 

treatment, all of which is to [Appellant’s] great financial 

detriment and loss.

11. As a further direct and proximate result of the negligence, 

carelessness, and/or recklessness of [the Defendants, 

Appellant] has been unable to attend to her usual and daily

activities, occupation and labors and may have sustained a 

loss in earnings and/or impairment of her earning capacity or 

power.

12. As a result of the aforesaid accident, [Appellant] has 

suffered property damage to her vehicle.

WHEREFORE, [Appellant] demands judgment against [the 

Defendants], jointly and/or severally for punitive damages in 

an amount not in excess of [$50,000.00], plus interest, 

attorneys’ fees and costs of suit.

Appellant’s Complaint, 7/2/19, at ¶¶ 7-12 (emphasis omitted). 

The Defendants filed preliminary objections to Appellant’s complaint. 

Among other things, the Defendants requested that the trial court strike 

Appellant’s complaint for insufficient specificity. According to the Defendants: 

“[Appellant’s] complaint omits any specific allegations regarding material facts 

such as which road the accident occurred on, where the parties’ vehicles were 

positioned before and at the time of impact, in which direction the respective 

vehicles were traveling, or even in what manner the accident occurred.” The 

Defendants’ Preliminary Objections, 8/15/19, at ¶ 5.
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Appellant did not file a response to the Defendants’ preliminary 

objections1 and, on September 10, 2019, the trial court entered an order

striking Appellant’s complaint, in its entirety and without prejudice,

2 “for 

insufficient specificity of [the] Defendants’ alleged negligence as to the 

happening of the alleged accident.” Trial Court Order, 9/10/19, at 1.

On December 2, 2019, Appellant filed a motion for reconsideration and 

requested that the trial court vacate its prior order and overrule the 

Defendants’ preliminary objections; in the alternative, Appellant requested 

that the trial court grant her leave to amend her complaint. See Appellant’s 

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1 As our Supreme Court has held, Appellant was not required to file a response

to the Defendants’ preliminary objections. See Uniontown Newspapers, 

Inc. v. Roberts, 839 A.2d 185, 190 (Pa. 2003). (“[t]here is no requirement 

in the Rules of Civil Procedure that the non-moving party respond to a 

preliminary objection, nor must that party defend claims asserted in the 

complaint. Failure to respond does not sustain the moving party's objections 

by default, nor does it waive or abandon the claim”); see also Pa.R.C.P. 

1017(a)(4) Note (“[a]n answer needs to be filed to a preliminary objection 

only when the preliminary objection alleges facts not of record”).

2 The language of the trial court’s order was silent as to whether the striking 

of the complaint was done with or without prejudice. However, as the trial 

court explained, the context of the order clearly informed the parties that the 

complaint was stricken without prejudice. See Trial Court Opinion, 9/2/20, at 

4 (explaining: “Appellant’s complaint was stricken in its entirety without 

prejudice on September 9, 2019. All Appellant needed to do was file a new 

complaint, since her complaint was stricken without prejudice”) (emphasis in 

original). Certainly, the trial court struck the complaint because, it believed, 

Appellant failed to plead the facts with sufficient specificity. Absent any 

language in the order to the contrary, it is obvious that Appellant was implicitly 

granted leave to amend so that she could plead the facts with greater 

specificity.
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Motion for Reconsideration, 12/2/19, at 1. The trial court denied Appellant’s 

motion on December 4, 2019. Trial Court Order, 12/4/19, at 1.

On December 16, 2019, Appellant filed a motion for leave to amend her 

complaint so that she could “include more specific allegations of the negligent 

acts ascribed to [the Defendants].” Appellant’s Motion for Leave to Amend, 

12/16/19, at 1. The Defendants answered Appellant’s motion and argued that 

Appellant’s motion was “improper because [Appellant’s] complaint has been 

stricken by the court and, therefore, there is no active . . . complaint pending 

before the court” that could be amended. The Defendants’ Answer, 1/6/20, 

at 2.

The trial court denied Appellant’s motion for leave to amend on January 

17, 2020 and, on January 28, 2020, Appellant filed a notice of appeal from 

the trial court’s January 17, 2020 order. On September 1, 2020, however, 

this Court entered a per curiam order that sua sponte quashed Appellant’s 

appeal and declared: “[t]he January 17, 2020 order is not a final appealable 

order.” Order, 9/1/20, at 1.

On December 3, 2020, the Defendants filed a motion for judgment on 

the pleadings.

3

 Within the motion, the Defendants argued:

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3 A motion for judgment on the pleadings may only be filed “[a]fter the 

relevant pleadings are closed.” Pa.R.C.P. 1034(a). Here, the relevant 

pleadings were not closed at the time the Defendants filed their motion.

Indeed, since Appellant’s complaint had been stricken in its entirety and 

Appellant did not file an amended complaint, there was simply no extant 

(Footnote Continued Next Page)
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____________________________________________

complaint in this case. Nevertheless, Appellant does not claim error regarding 

this procedural irregularity. 

We note that, in Hionis v. Concord Township, 973 A.2d 1030 (Pa. Cmwlth. 

2009), the Commonwealth Court explained the proper procedure for obtaining 

a final order, where the trial court either dismisses or strikes a complaint

without prejudice and where the plaintiff either does not wish to or does not 

timely comply with the trial court's order to amend the complaint. As the 

Commonwealth Court explained:

[Precedent declares that an order striking or dismissing a 

complaint without prejudice cannot] become final until a 

procedural step is taken, such as receiving a judgment of non 

pros. However, a judgment of non pros is not the exclusive 

method for making the order final. . . . [W]ere this true, a 

plaintiff's ability to appeal would become a matter of the 

defendant's grace.

. . .

In Ayre v. Mountaintop Area Joint Sanitary Authority, 427 

A.2d 1294 (Pa. Cmwlth. 1981), [the Commonwealth] Court 

explained that a plaintiff who chooses not to file an amended 

complaint may appeal by filing a praecipe with the trial court to 

dismiss the original complaint with prejudice. In this way, the 

plaintiff can convert an interlocutory order into a final and 

appealable order. There are sound reasons for requiring this 

intermediary step, as has been explained:

It should be noted that an order sustaining preliminary 

objections often grants the plaintiff leave to amend within a 

time certain or suffer dismissal. Such an order is interlocutory 

and never will become appealable, because it is a mere 

direction that an order be entered at some time in the future, 

unaccompanied by actual entry of the specified order in the 

docket. In order to appeal such an order, the plaintiff must 

allow the period for amendment specified in the lower court's 

order to expire, and then praecipe the lower court clerk to 

enter an order dismissing the complaint.

(Footnote Continued Next Page)
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[Appellant] was required by [Pennsylvania Rule of Civil 

Procedure] 1028(e) to file an amended complaint within [20] 

days of the [trial] court’s September 9, 2019 order sustaining 

[the] Defendants’ preliminary objections and striking the 

complaint. [Appellant] failed to file an amended complaint 

and failed to timely file a motion for reconsideration of the 

[trial] court’s September 9, 2019 order striking the 

complaint. Now, there is no complaint to establish any 

genuine issue of material fact or upon which this case can 

proceed to hearing or trial. Accordingly, by virtue of the 

absence of any complaint, [the] Defendants are entitled to 

judgment on the pleadings because there are no facts, let 

alone any material facts, upon which there is any dispute or 

any basis for this case to proceed.

The Defendants’ Motion, 12/3/20, at ¶¶ 19-22 (citations, paragraphing, and 

some capitalization omitted).

The Defendants requested that the trial court grant their motion and 

dismiss Appellant’s action with prejudice. See id. at 4.

Appellant filed an answer and requested that the trial court deny the 

Defendants’ motion because “the [Defendants’] preliminary objections . . . 

should never have been granted in the first place [and Appellant’s] motion for 

reconsideration should have been granted in order to allow the cause of action 

to proceed on the merits.” Appellant’s Answer, 12/22/20, at ¶ 27.

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20 G. RONALD DARLINGTON, ET AL., PENNSYLVANIA APPELLATE 

PRACTICE § 301:19 (2008–2009).

Hionis v. Concord Twp., 973 A.2d 1030 (Pa. Cmwlth. 2009) (emphasis and 

footnotes omitted); see also Branton v. Nicholas Meat, LLC, 159 A.3d 540, 

554 (Pa. Super. 2017) (“[a]lthough a decision of the Commonwealth Court is 

not binding upon this Court, it can be considered as persuasive authority”)

(quotation marks and citations omitted).
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On January 15, 2021, the trial court granted the Defendants’ motion 

and dismissed Appellant’s action. On January 27, 2021, Appellant filed a 

notice of appeal to this Court. She numbers three claims on appeal:

[1.] Did the [] trial court err in sustaining [the Defendants’] 

unanswered preliminary objections to [Appellant’s] 

complaint, including dismissing the entire complaint, when 

[the Defendants’] preliminary objections were clearly invalid 

on their face?

[2.] Did the [] trial court err in denying [Appellant’s] motion 

[asking the court to reconsider its order of September 10, 

2019 which sustained the Defendants’ preliminary objections 

and struck Appellant’s complaint where] the preliminary 

objections were clearly invalid on their face and despite the 

fact that the previous order denied [Appellant] her day in 

court without reasonable basis?

[3.] Did the [] trial court err in granting [the Defendants’] 

motion for judgment on the pleadings when that motion was 

based on an improper dismissal of [Appellant’s] complaint by 

the [] trial court?

Appellant’s Brief at 4.4

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4 The trial court ordered Appellant to file a concise statement of errors 

complained of on appeal, in accordance with Pennsylvania Rule of Appellate 

Procedure 1925(b). Appellant filed her Rule 1925(b) statement and declared:

Because the granting of the preliminary objections, by striking the 

entire complaint, was . . . improperly granted, and because that 

was believed to be the basis for the granting of the motion for 

judgment on the pleadings, it is the position of [Appellant] that 

judgment on the pleadings should not have been granted and that 

the case should have been permitted to proceed forward on the 

merits.

Appellant’s Rule 1925(b) Statement, 3/23/21, at 3.
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In essence, Appellant claims that the trial court erred when it entered 

its September 10, 2019 order, which sustained the Defendants’ preliminary 

objections and struck Appellant’s complaint, in its entirety and without 

prejudice, “for insufficient specificity of [the] Defendants’ alleged negligence 

as to the happening of the alleged accident.” See Trial Court Order, 9/10/19, 

at 1. Although the September 10, 2019 order was interlocutory when entered, 

a final order has now been entered in this case.5 As such, we have jurisdiction 

to review the propriety of the trial court’s September 10, 2019 order. See 

Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa. Super. 2008) (“a notice of appeal 

filed from the entry of the final order in an action draws into question the 

propriety of any prior non-final orders . . . [and i]nterlocutory orders that are 

not subject to immediate appeal as of right may be reviewed in a subsequent 

timely appeal of a final appealable order or judgment. Accordingly, 

interlocutory orders . . . become reviewable on appeal upon the trial court's 

entry of a final order”) (quotation marks and citations omitted).

As noted above, the trial court sustained the Defendants’ preliminary 

objections and ordered that Appellant’s complaint be stricken, in its entirety, 

____________________________________________

5 As explained above, Appellant sought leave to amend her complaint and, on 

January 17, 2020, the trial court denied Appellant leave to amend. Appellant 

filed an immediate appeal from the trial court’s January 17, 2020 order and, 

on September 1, 2020, this Court sua sponte quashed Appellant’s appeal, 

reasoning that “[t]he January 17, 2020 order is not a final appealable order.” 

Order, 9/1/20, at 1. This Court’s September 1, 2020 order is the law of the 

case and stands for the proposition that the trial court’s January 17, 2020 

order was interlocutory in nature. Therefore, the trial court’s January 15, 

2021 order constitutes the final order in this case.
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“for insufficient specificity of [the] Defendants’ alleged negligence as to the 

happening of the alleged accident.” See Trial Court Order, 9/10/19, at 1. 

Appellant claims that the trial court’s order was erroneous and argues that her 

complaint was “clearly sufficient to advise [the Defendants] and their attorney 

of the facts necessary to answer and defend this lawsuit.” Appellant’s Brief at 

17. We agree.

Our Supreme Court has explained:

Pennsylvania is a fact-pleading jurisdiction; as such, a 

complaint must provide notice of the nature of the plaintiff's 

claims and also summarize the facts upon which the claims 

are based. Rule of Civil Procedure 1019(a) and (b) 

encapsulate this theory. Rule 1019(a) provides that in 

pleadings, “the material facts on which a cause of action or 

defense is based shall be stated in a concise and summary 

form.” Pa.R.C.P. 1019(a). Rule 1019(b) requires that 

“averments of fraud or mistake shall be averred with 

particularity. Malice, intent, knowledge, and other conditions 

of mind may be averred generally.” Pa.R.C.P. 1019(b). The 

purpose of these rules is to require the pleader to disclose 

material facts sufficient to notify the adverse party of the 

claims it will have to defend against. 

While our rules require the pleading of all material facts upon 

which claims are based, there is no requirement to plead the 

evidence upon which the pleader will rely to establish those 

facts. Unified Sportsmen of Pa. v. Pa. Game Comm'n, 

950 A.2d 1120, 1134 (Pa. Commw. 2008) (holding that to be 

sufficiently specific, “the complaint need not cite evidence but 

only those facts necessary for the defendant to prepare a 

defense”). We have long recognized that the line between 

pleading facts and evidence is not always bright, but distilled 

the specificity requirement into two conditions that must 

always be met: the pleadings must adequately explain the 

nature of the claim to the opposing party so as to permit him 

to prepare a defense and they must be sufficient to convince 

the court that the averments are not merely subterfuge. To 
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assess whether a claim has been pled with the requisite 

specificity, the allegations must be viewed in the context of 

the pleading as a whole. 

Commonwealth by Shapiro v. Golden Gate Nat’l Senior Care LLC, 194 

A.3d 1010, 1029-1030 (Pa. 2018) (brackets and some quotation marks and 

citations omitted).

Read fairly and viewed in the context of the pleading as a whole, 

Appellant’s complaint alleges and avers the following: on July 14, 2017, at 

approximately 8:30 p.m., the Defendants were driving a Honda Ridgeline, 

which was owned by Defendant Rolon; the Defendants negligently operated 

their vehicle by, among other things, “[g]oing through a red light”; as a result 

of this negligence, the Defendants’ vehicle struck Appellant’s vehicle “at or 

near the intersection of Lehigh and Aramingo Avenues” in Philadelphia; and, 

as a result of this accident, Appellant suffered multiple, specific physical, 

mental, and economic injuries. See Appellant’s Complaint, 7/2/19, at 

¶¶ 4-12.

To paraphrase our Supreme Court, in the case at bar: “[Appellant’s]

complaint meets the specificity requirements of Rule 1019. Read as a whole, 

the [] complaint adequately details the nature of the claims so as to permit 

the [Defendants] to prepare a defense and satisfies this Court that the claims 

are not baseless subterfuge.” Golden Gate Nat’l Senior Care LLC, 194 A.3d 

at 1030. In following, the trial court erred when it struck Appellant’s complaint 

based upon the insufficiency of the pleading. We thus vacate the trial court’s 
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January 15, 2021 and September 10, 2019 orders and remand this case for 

further proceedings.

Orders vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/19/2022