Sardo v. Smith , 2004 Pa. Super. 172 ( 2004 )

DISSENTING OPINION BY

CAVANAUGH, J.:

¶ 1 I respectfully dissent. The majority remands to the trial court to conduct an evidentiary hearing to determine whether appellants made a “good faith effort” in their attempts at service of process, concluding that “the trial court erred in its March 12, 2003 order when it relied exclusively on the analysis set forth in Wither-spoon in striking Appellants’ complaint.” However, it is clear to me that the trial court did not rely exclusively on Wither-spoon. Indeed, in its opinion in support of its order sustaining appellee’s preliminary objections, the trial court specifically stated that “Witherspoon is not controlling authority[.]” Citing to this court’s majority decision in Parr v. Roman, 822 A.2d 78 (Pa.Super.2003), and the applicable “good faith effort” rule set forth in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), the trial court found appellants’ efforts to effectuate service of process to be deficient and characterized their conduct as impermissible stalling.

¶2 Every averment of fact that appellants now purport to raise as evidence of their good faith effort to timely serve process was included in their brief in opposition to appellee’s preliminary objections which the court considered. Clearly and correctly, in my view, the court determined that appellants’ attempts did not amount to a good faith effort. Thus, I disagree with the majority’s determination requiring the trial court to conduct a hearing on the issue. I cannot agree with a disposition which requires the pointless and formulistic repetition of judicial consideration of undisputed facts, the outcome of which is undoubtedly a foregone conclusion.

¶ 3 Further, I would note that my dissent in this case is grounded on a slightly different rationale than my dissent in Parr v. Roman, supra. In Parr, I believed that appellants had waived their appellate claim seeking to present evidence of good faith effort to the court, since they never sought a hearing below. See id. 822 A.2d at 83 (Cavanaugh, J. dissenting) and Pa.R.A.P. 302 (issues not raised in the lower court are waived and cannot be raised for the first time on appeal). Here, I believe appellants have similarly waived their claim.⁵ I would not elect to find waiver, however, but would reach the merits and would affirm on that basis. I dissent because the trial court, in my opinion, carefully and properly considered all of the factual aver-ments contained in the pleadings as true and determined that a good faith effort was not shown. I fail to see why a hearing is necessary to establish undisputed facts which the trial court has already considered and rejected as failing to support the particular legal conclusion which appellants continue to erroneously espouse.⁶

¶ 4 Thus, I respectfully dissent. I would affirm the order which sustained the preliminary objections and dismissed the complaint.

5 . Appellants filed an untimely, post-appeal petition for reconsideration with the trial court of its order sustaining appellee's preliminary objections and, therein, requested the court to "open the case in accordance with Parr v. Roman." The court properly did not act on this petition as it was without authority to do so. See 42 Pa.C.S.A § 5505; Valley Forge Center v. Rib-It/K.P., Inc., 693 A.2d 242 (Pa.Super.1997).

6 . I must note that the court’s order sustaining the preliminary objections was entered on March 12, 2003. The notice of appeal was filed March 26, 2003. Parr v. Roman was decided on April 14, 2003. Obviously, the trial court was unable to consider this court’s decision in Parr when it decided the preliminary objections. However, the trial court’s opinion was filed in June of 2003. Therein, the trial court supported its decision by a stated consideration of the required good faith effort factors and citation to Parr. I would conclude that appellants’ bald allegations that the court engaged in a post hoc outcome-dependent determination of the case to "unilaterally” find a lack of good faith effort and that the court fashioned "its opinion merely to support its Order of Court” to be III founded, particularly given appellants’ documented failure to even attempt to reissue the writ until after appellee had filed her preliminary objections. As the majority aptly explains, the docket does not reflect that ap-pellee has ever been served with a writ of summons or a complaint. Surely appellants must be possessed of appellee’s whereabouts by now.