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HomeMy WebLinkAbout03-2006 CivilDAVID CRANE AND IN THE COURT OF COMMON PLEAS OF SAMANTHA CRANE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. DEMITRIOUS KARAGIANNIS, (a/k/a JAMES KARAGIANNIS, JIMMY KARAGIANNIS), PHYLLIS KARAGIANNIS, KARAGIANNIS, INC., SIERRA MADRE (a/k/a SIERRA MADRE SALOON, SIERRA MADRE RESTAURANT), DEFENDANTS 03-2006 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT OPINION AND ORDER OF COURT Bayley, J., February 23, 2004:-- Plaintiffs, David Crane and Samantha Crane, instituted this suit against defendants, Demitrious Karagiannis, (a/k/a James Karagiannis, Jimmy Karagiannis), Phyllis Karagiannis, Karagiannis, Inc., Sierra Madre (a/k/a Sierra Madre Saloon, Sierra Madre Restaurant), by filing a writ of summons on April 28, 2003. The writ was not served. It was reinstated on June 9, 2003. The Sheriff served the writ on counsel on June 20, 2003. Plaintiffs filed a complaint on December 13, 2003, and mailed it to counsel. The complaint sets forth causes of action for negligence and assault and battery resulting in injury to David Crane arising out of an altercation on October 17, 1997, at the Sierra Madre in Hampden Township, Cumberland County. Samantha 03-2006 CIVIL TERM Crane seeks damages for loss of consortium. On January 2, 2004, defendants filed preliminary objections averring that the writ of summons and complaint should be stricken for lack of proper service. Pennsylvania Rule of Civil Procedure 400(a) provides, with some exceptions not applicable here, that "original process shall be served within the Commonwealth only by the sheriff." Rule 402 provides that original process shall be served on the defendant and sets forth the way in which it can be accomplished. Service on counsel is not one of those ways.1 Rule 401(a) provides that, "Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint." Rule 401 (b)(1) provides that, "the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ .... "Rule 401(b)(2) provides that, "A writ may be reissued.., at any time and any number of times." On October 14, 1999, plaintiffs originally sued defendants herein and several other defendants in the United States District Court for the Middle District of Pennsylvania, for damages arising out of the altercation at the Sierra Madre on October 17, 1997. On June 16, 2000, the District Court dismissed all of plaintiffs' federal claims and declined to exercise jurisdiction over their state law claims. On March 27, 2003, the order was affirmed by the United States Court of Appeals for the Third Circuit. Counsel for the within defendants represented them in the federal case. 1 Rule 402(b) provides that "In lieu of service under this rule, the defendant or his authorized agent may accept service of original process by filing a separate document -2- 03-2006 CIVIL TERM Plaintiffs argue that the writ of summons and the complaint in the present case were properly served on defense counsel as a continuation of the federal case, thus there was no requirement for the writ of summons to be served on the defendants in this case. In Ferrari, $.P.A.v. Antonacci, 689 A.2d 320 (Pa. Super. 1997), the Superior Court of Pennsylvania, interpreting the Judicial Code, 42 Pa.C.S. § 5103, stated: ... Section 5103 allows a matter to be transferred according to its provisions and permits the matter to be treated as filed on the date originally filed with the district court .... Section 5103 has been interpreted to be applicable in situations such as this where a federal court dismisses an action due to lack of jurisdiction. We have held that a litigant should file a certified transcript of the final judgment of the federal court and a certified transcript of the pleadings from the federal action, rather than new pleadings in the state court. Williams v. F.L. Smithe Mach. Co., Inc. [395 Pa. Super 511 (1990)]. The trial court in this case properly cited to the cautionary language of Williams which advised parties of the applicability of Section 5103 to situations as found in this case, and the need to act with promptitude. However, for the benefit of both bench and bar, we now emphasize that in order to protect the timeless of an action under 42 Pa.C.S.A. § 5103, a litigant, upon having his case dismissed in federal court for lack of jurisdiction, must promptly file a certified transcript of the final judgment of the federal court and, at the same time, a certified transcript of the pleadings from the federal action. The litigant shall not file new pleadings in state court. Plaintiffs did not avail themselves of the transfer provision in Section 5103. Therefore, based on the reasoning of the Superior Court we conclude that plaintiffs' writ of summons was not a continuation of the federal case where service of documents on counsel would have been authorized because original process had been served on [of acceptance of service]." -3- 03-2006 CIVIL TERM defendants. Alternatively, plaintiffs argue that since defense counsel represented defendants in federal court on causes of action arising out of the same incident for which causes of action are now filed in this case, and the federal court declined to exercise jurisdiction, counsel had a reasonable basis for concluding that defense counsel would continue to represent defendants and accept service of documents or otherwise notify them that service would not be accepted. In Lamp v. Heyman, 469 Pa. 465 (1976), the Supreme Court of Pennsylvania held that a cause of action will remain effective only if the plaintiff, "refrains from a course of conduct which serves to stall in its tracks the legal machinery that he has just set in motion." The Court stated: [W]e now conclude that there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the processes of justice as speedy and efficient as possible .... Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations. (Emphasis added.) (Footnote omitted.)2 In Leidich v. Franklin, 394 Pa. Super. 302 (1990), the Superior Court of Pennsylvania stated that, "There is no mechanical approach to apply to determine what : The current preliminary objections do not involve a statute of limitations issue. Any statute of limitations issue must be raised in new matter pursuant to Pa. Rule of Civil Procedure 1030(a). -4- 03-2006 CIVIL TERM constitutes a good faith effort to effectuate service, though the plaintiff has the burden of showing his efforts were reasonable." In Rosenberg v. Nicholson, 408 Pa. Super. -5- 03-2006 CIVIL TERM 502 (1991), the Superior Court stated, "Service of process upon the defendant is designed to provide him with notice of the lawsuit. Notice is extremely important, as it The Court concluded is the constitutional touchstone for the power of the court to act." that: [I]t is not necessary the plaintiff's conduct be such that it constitutes some bad faith act or overt attempt to delay before the rule of Lamp will apply. Watts v. Owens-Corning Fiberglas Corp., 353 Pa. Super. 267, 509 A.2d 1268 (1986), appeal denied, 514 Pa. 632, 522 A.2d 559 (1987). Simple neglect and mistake to fulfill the responsibility to see that requirements for service are carried out may be sufficient to bring the rule in Lamp to bear. Weiss v. Equibanl(, 313 Pa. Super. 446, 460 A.2d 271 (1983). Thus, conduct that is unintentional that works to delay the defendant's notice of the action may constitute a lack of good faith on the part of the plaintiff. Id. (Emphasis added.) The present case is not a situation where a writ of summons was filed and there was no attempt to effectuate service. Plaintiffs' counsel filed a writ of summons on April 28, 2003, reinstated it, and served it on defense counsel on June 20, 2003. Counsel then sent defense counsel a complaint on December 13, 2003. On these facts there was no bad faith in plaintiffs' counsel's belief that defense counsel had accepted service of the writ of summons and the complaint. Defense counsel, (1) never notified plaintiffs' counsel that he would not accept service, (2) never sent the documents back to counsel, and (3) waited until January 2, 2004, to file preliminary objections averring that the writ of summons and the complaint should be stricken for lack of proper service. In Breinig v. Newburg Walker & Rogers A Joint Venture, et al., 14 Carbon County L.J. 223 (1995), plaintiff, on May 6, 1991, instituted suit by a writ -6- 03-2006 CIVIL TERM of summons against numerous defendants. Two of the defendants, Frank Chiapetta and Blasting Analysis International (BAI), were not served. In September, 1991, plaintiffs filed a complaint but made defective service against Chiapetta. Chiapetta gave that complaint to his attorney who told him to do nothing because he was not properly served. The attorney was representing Chiapetta and BAI generally, and he was also defending two other cases arising out of the same project which was the subject of this suit. On October 24, 1994, Chiapetta's and BAI's attorney filed preliminary objections attacking the court's jurisdiction for lack of personal service. President Judge Lavelle dismissed the preliminary objections holding, inter alia, that the defense attorney's: [c]onduct constituted a waiver of personal service and Chiapetta and BAI are subject to the jurisdiction of this court. To rule otherwise would, in effect, grant a judicial imprimatur to defense stealth tactics which we find both unacceptable in legal practice and unworthy of a member of the bar. We believe that when a lawyer receives and thereby accepts service of legal documents from another lawyer in a lawsuit, he is duty bound by his oath to the court and the bar to disclose his interest and role, whether official or unofficial, in the case. At the very least, the attorney should return the documents to the sending lawyer with a message to send no more. The day of "snap" judgments and ambush motions for dismissal of cases due to technical defects in pleading is now over. The notion that a lawyer must protect a client by any means has also long passed. A lawyer has a higher duty to the court and to the interests of justice than to his or her client. That duty requires the utmost candor, honesty and trust in dealing with opposing counsel and the court. In the case sub judice, if defense counsel was not inclined or authorized to accept service of the writ of summons, when he was counsel of record for the same -7- 03-2006 CIVIL TERM defendants in a companion case involving the same incident in federal court, he should have immediately notified plaintiffs' counsel. Plaintiffs' counsel was undoubtedly careless in not nailing down service of the writ of summons. The rule in Lamp is to prevent a plaintiff from causing delay in "the legal machinery that he has set in motion." We believe that Judge Lavelle hit the nail on the head in Breinig. For defense counsel to have received the writ of summons on June 20, 2003, and waited for over a half year until January 2, 2004, to file preliminary objections averring lack of proper service, does not warrant our dismissing the suit. We find that there was a waiver of personal service of the writ of summons and complaint. See Gembusia v. Phelabaum, 48 Cumberland L.J. 233 (1999). There was no delay in the legal machinery that had been set in motion. Alternatively, defendants maintain that the complaint should be dismissed because plaintiffs have not stated a valid cause of action for negligence and assault or alternatively plaintiffs should be compelled to file a more specific pleading. We have examined the complaint and are satisfied that plaintiffs have adequately pled facts in support of their causes of action. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of February, 2004, the preliminary objections of defendants to plaintiffs' complaint, ARE DISMISSED. By the Court, -8- 03-2006 CIVIL TERM Edgar B. Bayley, J. Jeffrey J. Wood, Esquire Thomas & Associates 3111 North Front Street Harrisburg, PA 17110 For Plaintiffs Todd B. Narvol, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 For Defendants :sal -9- DAVID CRANE AND SAMANTHA CRANE, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEMITRIOUS KARAGIANNIS, (a/k/a JAMES KARAGIANNIS, JIMMY KARAGIANNIS), PHYLLIS KARAGIANNIS, KARAGIANNIS, INC., SIERRA MADRE (a/k/a SIERRA MADRE SALOON, SIERRA MADRE RESTAURANT), DEFENDANTS 03-2006 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT ORDER OF COURT AND NOW, this day of February, 2004, the preliminary objections of defendants to plaintiffs' complaint, ARE DISMISSED. By the Court, Jeffrey J. Wood, Esquire Thomas & Associates 3111 North Front Street Harrisburg, PA 17110 For Plaintiffs Edgar B. Bayley, J. Todd B. Narvol, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 03-2006 CIVIL TERM For Defendants :sal