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Triffin v. Southeastern Pennsylvania Transportation Authority

Superior Court of New Jersey, Appellate Division

January 15, 2020

ROBERT J. TRIFFIN, Plaintiff-Appellant,

          Argued January 7, 2020

          On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. DC-004942-18.

          Robert 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 brief).

          Before Judges Fisher, Accurso and Rose.


          FISHER, P.J.A.D.

         In this 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.

         Plaintiff 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.[1] 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 payroll checks.

         After 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[2] - 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.

         Plaintiff 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.

         We 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.

         SEPTA's 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.[3] 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).[4]

         Having 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.[5] 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 9.[6]

         To 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.[7] It did neither.[8] 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 ...

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