Vargas, R. v. United Modular Entprs.

• Court: Superior Court of Pennsylvania
• Decided: December 14, 2023
• Docket: 1167 EDA 2023
• Status: Unpublished

Opinion

J-S38018-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

RAFAEL VARGAS : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : UNITED MODULAR ENTERPRISES : AND WILLIAM FERTSCH AND JOHN : DOES : No. 1167 EDA 2023

Appeal from the Order Entered April 4, 2022 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2022-05051

BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*

JUDGMENT ORDER BY KUNSELMAN, J.: FILED DECEMBER 14, 2023

Rafael Vargas appeals from the order that sustained the preliminary

objections dismissing two out of seven Defendants, United Modular

Enterprises, LLC (“UME”) and William Fertsch. Because the order did not

dispose of all parties, we quash the appeal as premature.

On February 20, 2019, Mr. Vargas was injured in a car accident with Mr.

Fertsch. Mr. Fertsch was driving a truck for UME.

Almost two years later, on February 12, 2021 Mr. Vargas filed a

complaint alleging negligence against UME, Mr. Fertsch, and “John Does 1-5.”

Complaint at 3. Mr. Vargas described the five John Does as “persons and/or

companies, whose identities are presently unknown . . . whom were in any

way responsible for the aforementioned incident and/or had an agency

relationship with Defendant(s).” Id. Originally, he filed the Complaint in the

Court of Common Pleas of Philadelphia. However, that court ruled that it was ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S38018-23

an improper venue and transferred the matter to the Court of Common Pleas

of Bucks County.

Following transfer, UME and Mr. Fertsch filed preliminary objections to

Mr. Vargas’ Third Amended Complaint. That operable complaint still included

five John Does as Defendants to this action. The trial court sustained the

preliminary objections of UME and Mr. Fertsch, based upon its finding of

untimely service of process by Mr. Vargas.

Notably, Mr. Fertsch has yet to identify any John Doe, and no John Doe

filed an appearance or preliminary objections to the operable complaint. Also,

Mr. Vargas did not discontinue the action against the five John Does. Instead,

he immediately appealed from the order sustaining UME and Mr. Fertsch’s

preliminary objections and dismissing his complaint with prejudice as to those

two Defendants.

“[T]he appealability of an order goes directly to the jurisdiction of the

Court asked to review the order.” Stahl v. Redcay, 897 A.2d 478, 485 (Pa.

Super. 2006). Although the parties have not raised the issue of jurisdiction,

this Court “may always consider that question on our own motion.” Kapcsos

v. Benshoff, 194 A.3d 139, 141 (Pa. Super. 2018) (en banc). A jurisdictional

issue presents us with “a question of law; the appellate standard of review is

de novo, and the scope of review plenary.” Id.

This Court’s appellate jurisdiction only extends to “(1) a final order or

an order certified by the trial court as a final order; (2) an interlocutory order

as of right; (3) an interlocutory order by permission; (4) or a collateral order.”

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Chase Manhattan Mortgage Corp. v. Hodes, 784 A.2d 144, 144 (Pa.

Super. 2001). “A final order is one that disposes of all the parties and all the

claims, is expressly defined as a final order by statute, or is entered as a final

order pursuant to the trial court’s determination.” Stahl, 897 A.2d at 485.

Here, only two out of seven Defendants in Mr. Vargas’ Third Amended

Complaint appeared and filed preliminary objections. Thus, the trial court’s

order sustaining preliminary objections addressed only those two Defendants

and dismissed the complaint with prejudice as to them. The appealed-from

order did not dispose of all the parties and all the claims in the lawsuit Mr.

Vargas filed. See Stahl, supra. Additionally, the order is not immediately

appealable by statute, nor did the trial court make a specific determination

that the order was a final one. 1

In short, Mr. Vargas’ claims against the five John Does remain pending

before the trial court. Because the order in question is not a final order, we

lack appellate jurisdiction at this time.

Appeal quashed.

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1 Moreover, the order clearly does not meet the definition of a collateral order.

See Pennsylvania Rule of Appellate Procedure 313(b). Nor is it an interlocutory order that was appealable as of right by operation of law.

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Date: 12/14/2023

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