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HomeMy WebLinkAbout01-5260 CivilROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW GERALD HENDERSON and RUSSELL M. BIBLE,: Defendants NO. 01-5260 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFFS' COMPLAINT BEFORE HOFFER, P.J., HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., February 28, 2003. For disposition in this negligence action arising out of an automobile accident is Defendants' Preliminary Objection to Plaintiffs' Complaint. The preliminary objection seeks dismissal of the complaint based on Plaintiffs' failure to pursue service in accordance with Lamp v. Heyman~ and its progeny. The matter was argued on January 8, 2003. For the reasons stated in this opinion, Defendants' preliminary objection will be denied. STATEMENT OF FACTS On September 10, 1999, Plaintiff Rose Mary Koch was allegedly injured in a two-vehicle accident due to the careless operation of an automobile driven by Defendant Russell M. Bible and negligently entrusted to him by Defendant Gerald Henderson; Plaintiff T. Allen Koch allegedly suffered a loss of consortium as a result of her injuries.2 ~ 469 Pa. 465, 366 A.2d 882 (1976) (adopting rule that praecipe for writ of summons remains effective, for purposes of commencing action, only if plaintiff refrains from course of conduct serving to stall legal machinery). : Plaintiffs' Complaint, filed Mar. 27, 2002. Plaintiffs filed a praecipe for writ of summons in this case against Defendants on September 6, 2001,3 thus protecting, at least temporarily, the two- year statute of limitations.4 The address provided by Plaintiffs for each Defendant on the praecipe for writ of summons was 392 Dairy Lane, Palmyra, PA 17078.5 This was the correct address for each Defendant.6 The filing of Plaintiffs' praecipe for writ of summons was accompanied by checks from their counsel to the prothonotary in the amount of $45.50 for the filing fee and to the sheriff in the amount of $150.00 to cover costs of service of the writ of summons on Defendants.7 The cover letter to the prothonotary from the office of Plaintiffs' counsel directed that the applicable check and two copies of the writ of summons be transmitted to the sheriff, and requested that service be made upon Defendants by the sheriff,a Palmyra Borough is a municipality situated entirely in Lebanon County.9 Unfortunately for Plaintiffs, as it developed, not all Palmyra post office addresses are in Lebanon.l° Upon receipt, on September 7, 2001,~ of the writ of summons, the Cumberland County Sheriff' s office consulted a reference book utilized for the ~ Plaintiffs' Praecipe for Writ of Summons, filed Sept. 6, 2001. 4 See Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §5524(2) (2002). 5 Plaintiffs' Praecipe for Writ of Summons, filed Sept. 6, 2001. 6 Deposition of Linda Witmer, filed Dec. 23, 2002, ex. 2. 7Id. ex. 3. 8Id. ex. 2. 9 E.g., Pennsylvania Spatial Data Access System, Pennsylvania Atlas (showing, on map produced in conjunction with agencies of the Commonwealth of Pennsylvania, that Palmyra Borough lies within Lebanon County), http://gisl.pasda.psu.edu/Website/PA Atlas/(last visited February 13, 2003); see also Pa. R.E. 201 (providing that the court may take judicial notice of a fact "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). l0 Deposition of Linda Witmer, filed Dec. 23, 2002, at 10-11. ~ Deposition of Doris Goodhart, filed Dec. 3, 2002, at 5. 2 purpose of determining the counties in which municipalities are located, and ascertained that Palmyra was in Lebanon County. ~2 Accordingly, the Cumberland County Sheriff deputized the Lebanon County Sheriff to serve Defendants with the writ of summons. ~3 A "Not Found" return of service, dated September 24, 2001, was thereafter returned by the Lebanon County Sheriff to the Cumberland County Sheriff. ~4 A note contained on the return by the Lebanon County deputy sheriff who attempted service stated that "the Defendants reside outside of this bailiwick, most likely living in Dauphin County, PA.''~5 The note did not add the critical information that this was because the Palmyra address of Defendants was a Dauphin County address.~6 In retrospect, a staff assistant with the Cumberland County Sheriff's Office observed: [M]ost of [the] problem [in this case] lies with [this] Lebanon County return, because the ... return, in my opinion, doesn't stipulate that that address is not in Lebanon County. It just says they're not in Lebanon County .... ~7 In any event, the Cumberland County Sheriff filed the sheriff's return on September 25, 2001,~8 and remitted to Plaintiffs' counsel a balance of $44.32 on the $150.00 deposit for service.~9 According to the secretary for Plaintiffs' counsel, the remittance to her office was not accompanied by a copy of the return, ~:Id. at 15. ~3 Id. at 5; id. exs. 1-2. ~4Id. ex. 3. ~S ld' ~6 Id' ~7Id. at 14. ~8 Defendants' Preliminary Objection to Plaintiffs' Complaint, filed Apr. 15, 2002, para. 3; Plaintiffs' Answer to Defendant's Preliminary Objection to Plaintiffs' Complaint, filed Apr. 26, 2002, para. 3. 19 Deposition of Linda Witmer, filed Dec. 23, 2002, at 7; Deposition of Doris Goodhart, filed Dec. 3, 2002, ex. 4. 3 and she assumed (reasonably in the court's view) from the amount of the deposit consumed that service had been effected.2° On March 6, 2002, counsel for Defendants filed his appearance in the case,2~ and, by praecipe dated March 15, 2002, Defendants' counsel ruled Plaintiffs to file a complaint.22 Plaintiffs' complaint was filed on March 27, 2002.23 Defendants filed the preliminary objection sub judice to Plaintiffs' complaint on April 15, 2002.24 The preliminary objection requested that the court "terminate Plaintiffs' action on account of the passage of the statute of limitations without appropriate service upon Defendants.'25 The basis of the preliminary objection is indicated in Defendants' statement of the question presented: Should service be stricken and the case be dismissed where Plaintiffs failed to effectuate service of the Writ of Summons, failed to immediately and continually reissue the Writ of Summons until service was made, and in fact, did not serve original process until in excess of nine (9) months after the running of the applicable statute of limitations?26 Plaintiffs filed an answer in opposition to the preliminary objection on April 26, 2002.27 20 Deposition of Linda Witmer, filed Dec. 23, 2002, at 6-7, 12-13. 2~ Defendants' Praecipe To Enter Appearance, filed Mar. 6, 2002. 22 Defendants' Praecipe To Issue Rule To File Complaint, filed Mar. 18, 2002. The rule was issued by the prothonotary on March 18, 2002. It appears that this action on the part of Defendants does not waive the issue presented herein. See Keller v. LaBarre, 225 Pa. Super. 504, 311 A.2d 683 (1973). 23 Plaintiffs' Complaint, filed Mar. 27, 2002. 24 Defendants' Preliminary Objection to Plaintiffs' Complaint, filed Apr. 15, 2002. 25 ]d. 26 Brief in Support of Defendants' Preliminary Objection to Plaintiffs' Complaint, dated Jan. 7, 2003, at 3. 27 Plaintiffs' Answer to Defendant's Preliminary Objection to Plaintiffs' Complaint, filed Apr. 26, 2002. Plaintiffs' answer to the preliminary objections avers, inter alia, with supporting documentation, that as early as August 17, 2001, Defendants' insurer and Plaintiffs' counsel were 4 With the filing of Defendants' preliminary objection, Plaintiffs were alerted for the first time to the fact that service might not have been effected.28 The secretary for Plaintiffs' counsel contacted the Cumberland County Sheriff's Office, was advised that service had not been made on Defendants, and requested that copies of the return of service be faxed to her.29 Upon discovering from the faxed return that "the Defendants reside[d] outside of [Lebanon County], most likely in Dauphin County, PA,''3° she sought from the Palmyra office of the United States Postal Service, pursuant to the Freedom of Information Act, forwarding addresses for the Defendants.3~ The response from the Postal Service, dated April 19, 2002, was that neither Defendant had moved from the aforesaid Palmyra address.32 The secretary then requested the Cumberland County Sheriff to re-attempt service,33 utilizing a reinstated complaint.34 This time, when the Cumberland County Sheriff deputized the Lebanon County Sheriff for purposes of service, the "Not Found" return of the Lebanon County Sheriff contained the following note, making clear that Defendants' Palmyra address was actually in Dauphin County: engaged in negotiations concerning the case, and that on August 23, 2001, Defendants' insurer acknowledged in writing its understanding that a praecipe for writ of summons would be filed by Plaintiffs' counsel "to protect the statute in this matter." Id., Ex. A, B. Defendants' preliminary objection was listed for argument by Defendants' counsel without an evidentiary record having been made with regard to these averments. Defendants' Praecipe for Listing Case for Argument, filed Dec. 3, 2002. Although an argument can be made that Plaintiffs' allegations should be deemed admitted under Pennsylvania Rule of Civil Procedure 206.7(c), the facts of the present case are, in the court's view, sufficiently supportive of Plaintiffs' position on the preliminary objection without reference to these additional averments of Plaintiffs that it is not necessary to resolve this question in this opinion. 28 Deposition of Linda Witmer, filed Dec. 23, 2002, at 7-8, 12-14. 29 Id. at 8; id. ex. 1. ~°Id. ex. 1. ~ Id. at. 9; id. ex. 2. ~:Id. at 9-10; id. ex. 2. ~Id. at 10. 34 Plaintiffs secured reissuance of the complaint on April 26, 2002. Plaintiffs' Praecipe To Reinstate Complaint, filed Apr. 26, 2002. 5 *NOTE: [The Lebanon County deputy sheriff attempting service] checked once again with the Palmyra Post Office, and was informed that the given ad&ess of 392 Dairy Lane, Palmyra, is located in Dauphin County. He also checked with Lebanon County Assessment Office who verified that 392 Dairy Lane, Palmyra, is not in Lebanon County.35 The Cumberland County Sheriff thereupon deputized the Dauphin County Sheriff for purposes of service36 of a newly-reinstated complaint,37 resulting in an additional service fee to Plaintiffs.38 Service upon Defendants by the Dauphin County Sheriff was ultimately effected on May 21, 2002 (Defendant Bible), and May 28, 2002 (Defendant Henderson).39 DISCUSSION The early history of the legal issue presented recounted by Justice, later Chief Justice, Zappala in Philadelphia, 564 Pa. 388, 768 A.2d 1079 (2001). Prior to Lamp [v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976)], and before the adoption of the Rules of Civil Procedure, a rule had developed through case law regarding actions commenced by issuance of a writ of summons that allowed the plaintiff to "continue process to keep his cause of action alive" by reissuing the writ within a period of time equivalent to the statute of limitations applicable to the cause of action. The filing of the praecipe within the statute of limitations commenced the action, and reissuance of the writ kept the action alive for another "equivalent period," whether service was made or even attempted. The purpose of the rule identifying the filing of the praecipe as the commencement of the action, without regard to when the prothonotary actually issued the writ or the sheriff served it, was "to free the plaintiff in this case has been Witherspoon v. City of 35 Sheriff's Return, filed June 4, 2002. 37 Plaintiffs secured reissuance of the complaint a second time on May 20, 2002. Praecipe To Reinstate Complaint, filed May 20, 2002. 38 Deposition of Linda Witmer, filed Dec. 23, 2002, at 11. 39 Sheriff's Return, filed June 4, 2002. Plaintiffs' 6 from the risk that the statute of limitations may bar him if he acts in time, but someone else fails to act in time." Lamp represented a first step toward curbing the potential for abuse inherent in this rule. It had apparently become common for counsel to file a praecipe for writ of summons but instruct the prothonotary not to deliver the writ to the sheriff for service. Acknowledging that this practice was consistent with the letter of the rule.., but not with its purpose, [the Pennsylvania Supreme Court] disapproved the practice and changed the rule prospectively pursuant to [its] supervisory power. [It] stated that in actions instituted after the date of the Lamp decision, "a writ of summons shall remain effective to commence an action only if the plaintiff refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Id at 393-94, 768 A.2d at 1082. In essence, in Lamp the Pennsylvania Supreme Court "recognized service, or at least a good faith attempt at service, as a kind of condition subsequent that must be fulfilled to complete the commencement of the action begun by filing the praecipe." Id at 396, 768 A.2d at 1083. This principle was applied by the Court in Ferinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986), where a four-week lapse by plaintiffs' counsel in instructing and paying the sheriff for service of a writ of summons was not satisfactorily explained. Id In approving the trial court's dismissal of plaintiffs' complaint, the Court in Ferinacci stated that, "[i]n each case, where noncompliance with Lamp is alleged, the court must determine in its sound discretion whether a good-faith effort to effectuate notice was made." Id at 594, 511 A.2d at 759 (emphasis added). The principle was again applied in FFitherspoon, where service in a case commenced by praecipe for writ of summons was not effected until about nine months after the statute of limitations had run, due to deficiencies in the performance of plaintiff's private process server. 564 Pa. at 390-91, 768 A.2d at 7 1080. In concluding that the trial court's action in striking service was a proper exercise of discretion, Justice, later Chief Justice, Zappala stated: [T]he general intent of [Lamp and its progeny] is to allow a plaintiff to commence an action by filing a praecipe even at the very last moment before the limitation period expires and not be penalized because the "official" follow-up activity (issuance of the writ by the prothonotary, service of the writ by the sheriff) is not also completed within the limitation period. [The cases] establish that any failure regarding follow-up activity that is attributable to the plaintiff or his agents, rather than public officials, falls outside this purpose. Id at 396, 768 A.2d at 1083. Although the proposition that the "equivalent period" doctrine should be replaced with a requirement that "process . . . be immediately and continually reissued until service is made" in cases of the present type was also a subject of discussion in Witherspoon, it does not appear that this proposition commanded a majority of the Court. Id at 398-407, 768 at 1084-89. In the instant case, the elements of bad faith on the part of a plaintiff's counsel or another person acting as plaintiff's agent that have caused courts effectively to terminate actions commenced by praecipe for writ of summons due to subsequent delays in service are not present. Plaintiffs' counsel did not, as in Lamp, act to stall the legal machinery set in motion, nor did he proceed unreasonably in light of the unique circumstances in the case, which were occasioned by official as opposed to private conduct. See Sanders v. State Farm Mutual Automobile Insurance Co., 424 Pa. Super. 372, 376, 622 A.2d 966, 968 (1993); Gould v. Nazareth Hospital, 354 Pa. Super. 248, 252-53, 511 A.2d 855, 858 (1986). Indeed, in the court's view, this case is less an example of bad faith on the part of counsel than of the old aphorism that "the problem with the law is not the law--it's everything else.''4° 40 To the extent that Defendants' position herein depends upon the failure of Plaintiffs to immediately and continually reissue the writs, it is a contention that is as yet unsupported by the Pennsylvania Supreme Court. Miller v. Philadelphia Geriatric Center, No. 02-CA-1307, 2002 8 For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 28th day of February, 2003, after careful consideration of Defendants' Preliminary Objection to Plaintiffs' Complaint, and for the reasons stated in the accompanying opinion, the preliminary objection is denied and Defendants are afforded twenty days from the date of this order within which to file an answer to the complaint. BY THE COURT, John B. Dougherty, Esq. 800 North Second Street Harrisburg, PA 17102 Attorney for Plaintiffs C. Roy Weidner, Jr., Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. WL 1608223 (E.D. Pa. July 15, 2002) (noting that part of lead opinion in Witherspoon stating that, for a writ of summons to toll the limitations period, "process must be immediately and continually reissued until service is made," was supported "only... by two justices" and could not support application of such a rule). 9 10 ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW GERALD HENDERSON and RUSSELL M. BIBLE,: Defendants NO. 01-5260 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFFS' COMPLAINT BEFORE HOFFER, P.J., HESS and OLER, JJ. ORDER OF COURT AND NOW, this 28th day of February, 2003, after careful consideration of Defendants' Preliminary Objection to Plaintiffs' Complaint, and for the reasons stated in the accompanying opinion, the preliminary objection is denied and Defendants are afforded twenty days from the date of this order within which to file an answer to the complaint. BY THE COURT, John B. Dougherty, Esq. 800 North Second Street Harrisburg, PA 17102 Attorney for Plaintiffs C. Roy Weidner, Jr., Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants J. Wesley Oler, Jr., J. 12 DISSENTING OPINION BY JUDGE HESS I most respectfully disagree with the conclusion reached by my learned colleagues. As noted in Cintas Corp. v. Lee's Cleaning Services, Inc., 700 A.2d 915 (Pa. 1997): Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed .... Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her .... Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of an action against him or her. Id at 917-918. Lamp v. Heyman, supra, and its progeny require that the tolling effect of the statute of limitations will be extended only to plaintiffs who make a good-faith effort to effectuate service. Otterson v. Jones, 690 A.2d 1166 (Pa. Super. 1997). I am satisfied that good faith is more than the mere absence of bad faith. Our courts have repeatedly held that a demonstration of mistake or inadvertence does not meet the burden of showing good faith for the purpose of compliance with Lamp. See Cahill v. Shults, 643 A.2d 121 (Pa. Super. 1994) and cases cited therein. This rule is not attenuated merely because the court understands why the mistake was made. In this case, the Sheriff' s return not only indicated that service had not been made but suggested the proper county where service "most likely" could be effected. Where the tolling of the statute of limitations is dependent upon good- faith attempts at service, such good faith requires, at a minimum, that counsel examine the Sheriff' s return to determine whether or not service was made. Here, counsel simply relied on the mistaken conclusion of a member of the firm' s clerical staff. I would grant the defendants' preliminary objection.