ROBERT J. TRIFFIN, Plaintiff-Appellant,
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Defendant-Respondent, and RICHARD G. BURNFIELD and HOWARD S. ELLIS,
January 7, 2020
appeal from the Superior Court of New Jersey, Law Division,
Camden County, Docket No. DC-004942-18.
J. Triffin, appellant, argued the cause pro se.
Christopher A. Iacono argued the cause for respondent
(Pietragallo Gordon Alfano Bosick & Raspanti, LLP,
attorneys; Christopher A. Iacono, of counsel and on the
Judges Fisher, Accurso and Rose.
appeal, we consider the fact that a trial judge sua sponte
questioned whether personal jurisdiction may be exerted over
a defendant after that defense had been waived. Since
defendant Southeastern Pennsylvania Transportation Authority
(SEPTA) failed to either assert that affirmative defense in
its answer or move prior to trial to dismiss for lack of
personal jurisdiction, we conclude the judge was barred from
raising that waived defense on his own and, for that reason,
we both reverse the dismissal of plaintiff's action
against SEPTA and remand for a trial on the merits.
Robert J. Triffin brought this action in the special civil
part against SEPTA, Howard S. Ellis, and Richard G.
Burnfield, seeking damages on a dishonored
check. SEPTA appeared by filing an answer without
affirmative defenses; Ellis defaulted, and Burnfield was, as
plaintiff acknowledged, mistakenly named as a defendant. Only
plaintiff and SEPTA appeared on the trial date. At that time,
the parties initially provided the judge with their arguments
about the suit's merits. SEPTA asserted that the
instrument in question was a payroll check issued to its
employee, Ellis, who told SEPTA the check had been lost.
SEPTA issued a replacement, and apparently both checks were
somehow negotiated. Plaintiff presented his legal theory for
recovery, asserting that SEPTA's negligence caused a loss
for his assignor, which apparently cashed one of the two
hearing these arguments but before hearing testimony, the
judge questioned on his own whether the court could exert
personal jurisdiction over SEPTA. Following brief argument
about SEPTA's contacts with New Jersey, the judge
concluded without any sworn statements - other than
plaintiff's affidavit of diligent inquiry - that SEPTA had
no presence in or continuous and systematic contacts with New
Jersey. With the judge's verbal dismissal of the claim
against SEPTA, the proceedings that day ended. Plaintiff
later obtained a default judgment against Ellis and, soon
after, voluntarily dismissed his claim against Burnfield.
appeals the dismissal of his claim against SEPTA, arguing the
personal jurisdiction defense had been waived and that the
judge erred when, in dismissing the action, "he assumed
material facts not in evidence." In response, SEPTA
argues that plaintiff's appeal is untimely and that the
judge was entitled to raise sua sponte whether the court
could exert personal jurisdiction.
turn, first, to the appeal's timeliness. The parties
appeared for trial on September 17, 2018, and the claim
against SEPTA was dismissed in the manner just mentioned that
same day. At that time, plaintiff acknowledged Burnfield was
mistakenly included as a defendant and Ellis was in default.
On October 2, 2018, default judgment was entered against
Ellis, and on October 19, 2018, plaintiff filed a notice of
his voluntary dismissal of the action against Burnfield.
Plaintiff filed his notice of appeal on December 3, 2018:
seventy-seven days after the judge's oral ruling in favor
of SEPTA on the trial date, sixty-one days after a default
judgment was entered against Ellis, and forty-five days after
the formal dismissal of the claim against Burnfield.
argument about the appeal's timeliness is without merit.
Finality is not achieved in the trial court until all issues
as to all parties are resolved. Silviera-Francisco v. Bd.
of Educ., 224 N.J. 126, 136 (2016); Grow Co. v.
Chokshi, 403 N.J.Super. 443, 457-58 (App. Div. 2008).
When the judge orally granted his own motion to dismiss the
action against SEPTA, there remained unresolved claims
against Ellis and Burnfield. The claim against Ellis was
resolved when default judgment was entered against him on
October 2, 2018. The claim against Burnfield, even if he was
mistakenly named as a defendant, see n.3, below,
remained open and unresolved until formally dismissed on
October 19, 2018. The filing of the notice of appeal -
exactly forty-five days after the claim against Burnfield was
dismissed - was timely. R. 2:4-1(a).
established the appeal is timely, we turn to the propriety of
the judge's sua sponte assertion of a personal
jurisdiction defense on SEPTA's behalf and his dismissal
of the action on that ground. In considering this issue, we
must initially distinguish between claims based on the lack
of subject matter jurisdiction and those based on the lack of
personal jurisdiction. Rule 4:6-2 identifies both as
defenses that must be asserted in an answer or by timely
motion to dismiss. The absence of subject matter
jurisdiction, however, cannot be waived; it may be asserted
at any other time, even on appeal. See Rule 4:6-7
(empowering a court to dismiss "[w]henever it appears by
suggestion of the parties or otherwise" that the court
lacks subject matter jurisdiction); see also Peper v.
Princeton Univ. Bd. of Trs., 77 N.J. 55, 65-66 (1978);
McKeeby v. Arthur, 7 N.J. 174, 180-81 (1951);
Macysyn v. Hensler, 329 N.J.Super. 476, 481 (App.
Div. 2000). A defense based on the court's lack of
personal jurisdiction must also be pleaded or asserted by
motion to dismiss, see R. 4:6-2(b), but, unlike
subject matter jurisdiction, this defense is waivable, YA
Global Investments v. Cliff, 419 N.J.Super. 1, 9 (App.
Div. 2011); Bascom Corp. v. Chase Manhattan
Bank, 363 N.J.Super. 334, 341 (App. Div. 2003); Rosa
v. Araujo, 260 N.J.Super. 458, 464 (App. Div. 1992);
Hupp v. Accessory Distribs., Inc., 193 N.J.Super.
701, 711 (App. Div. 1984). Once the defense of lack of
personal jurisdiction is waived, there is no bar -
constitutional or otherwise - to a court's adjudication
of a claim against a non-resident defendant. Even without
sufficient contacts, a non-resident may be subjected to a
forum's jurisdiction by consent or by choosing not to
dispute the forum's exertion of personal jurisdiction.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472
n.14 (1985); YA Global, 419 N.J.Super. at
avoid a waiver, SEPTA was required to plead the defense of
lack of personal jurisdiction in its answer, R.
4:6-2, and timely move before trial for dismissal on that
ground, R. 4:6-7. It did neither. Instead, SEPTA appeared for
trial without objection. At the outset of the proceeding on
the trial date, the judge stated that he "d[id]n't
understand how jurisdiction is here" and asked whether
either party "want[ed] to address that." Plaintiff
seems to have interpreted this as a question about venue,
asserting "the only venue in which this collection
action can be brought is Camden County." SEPTA's
counsel did not take the hint and assert a lack of personal
jurisdiction; instead, counsel argued only that SEPTA could
not be held liable on the check issued to Ellis. The judge
responded that the parties' arguments were
"interesting," but then asserted that he did not
know "why SEPTA [sh]ould be forced to litigate in New
Jersey." Following argument on that question, the judge
concluded that the ...