Barry, M. v. Nationwide ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MAMADOU BARRY AND MIRIAM : IN THE SUPERIOR COURT OF
BARRY : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 232 EDA 2023
NATIONWIDE AND NATIONWIDE :
MUTUAL INSURANCE COMPANY :
Appeal from the Order Entered January 5, 2023
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 220303161
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 14, 2023
Mamadou Barry and Miriam Barry (“the Barrys”) appeal from the order
sustaining Nationwide and Nationwide Mutual Insurance Company’s
(“Nationwide”) preliminary objections for lack of service and dismissing the
Barrys’ complaint. After review, we affirm.
The trial court set forth the facts and procedural history as follows:
[On July 17, 2014, the Barrys were involved in a car accident.]
The accident occurred when Mr. Barry was driving westbound on
Luzerne Street near its intersection with Front Street in
Philadelphia, Pennsylvania, with Ms. Barry in the passenger seat.
Another vehicle travelling westbound, operated by Juan Delacruz
(“Mr. Delacruz”), collided with the rear of their vehicle. [The
Barrys] allege that they sustained injuries from the accident,
caused solely by the negligence of Mr. Delacruz. [The Barrys filed
suit against Mr. Delacruz and settled with him in or around June
2018.] After discovering that Mr. Delacruz did not maintain
sufficient limits of liability insurance, [the Barrys] sought
[underinsured motorist benefits (“UIM benefits”)] for the alleged
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injuries and losses they sustained from the accident, to which they
believed they were entitled under their insurance policy with
Nationwide.
[The Barrys commenced this action by filing a complaint on March
30, 2022, alleging that Nationwide failed to pay them [UIM
benefits] provided by their insurance policy.]
Nationwide filed preliminary objections to [the Barrys’] complaint
on October 3, 2022, seeking dismissal of the action for failure to
serve the complaint. Nationwide stated that as of the date of filing
its preliminary objections, the Barrys had not filed an affidavit of
service, and it was unaware of any attempts, defective or
otherwise, to serve the complaint since they had initiated the
action 197 days earlier. On October 4, 2022, the Barrys filed a
praecipe to reinstate the complaint, more than six months after
its initial filing.
On October 24, 2022, [the Barrys] filed a response to Nationwide’s
preliminary objections. In their response, they asserted that the
court should overrule the preliminary objections because
Nationwide was on notice of their claim and had not been
prejudiced by the delay in service and because they had not
intentionally delayed service. [The Barrys] stated that before
settling their case against Mr. Delacruz in 2018, Nationwide
granted their request for consent to settle by way of letter dated
June 13, 2018. In September 2020, before initiating the current
action, [the Barrys] sent a settlement demand to Nationwide, to
which they state Nationwide responded on October 5, 2020,
requesting additional information. [The Barrys] attached
Nationwide’s letters from June 13, 2018 and October 5, 2020 as
Exhibits A and B to their response. Based on the correspondence
from June 13, 2018 and October 5, 2020, [the Barrys] contend
that Nationwide was on notice of their UIM claims against it,
despite not initiating this action until March 30, 2022. They admit
that the complaint was inadvertently not served after it was filed
because of “an oversight on [the Barrys’] counsel’s part.”
In their response, [the Barrys] also state that the day after
Nationwide filed its preliminary objections, they realized the
complaint had not been served and filed a praecipe to reinstate
the complaint. While they claim they subsequently served the
complaint by regular mail, return receipt requested, they provided
no proof that service was effectuated in the manner described and
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there is no affidavit of service or other evidence on the docket
reflecting any attempt at service.
Trial Court Opinion, 3/14/23, at 1-3 (citations and footnotes omitted).
On January 4, 2023, based on the lack of evidence of any attempt to
serve the complaint over the course of almost a year since the action was
initiated, and no affidavit of service, the trial court sustained Nationwide’s
preliminary objections and dismissed the Barrys’ complaint.
On January 12, 2023, the Barrys filed this timely appeal. The Barrys
and the trial court complied with Pennsylvania Rule of Appellate Procedure
1925.
The Barrys raise the following single issue:
Whether the trial court abused its discretion and misapplied the
law when it sustained [Nationwide’s] preliminary objections
regarding [the Barrys’] unintentional delay in serving the
complaint even though [Nationwide] was aware of the claim and
[] did not suffer any prejudice, whatsoever, by the delay in
service?
Barrys’ Brief at 6.
On appeal, the Barrys’ claim that the trial court erred in granting
Nationwide’s preliminary objections based on lack of service. Specifically,
they argue that the failure to serve the complaint was inadvertent and they
did not act in bad faith by delaying service to gain an advantage in the
litigation. Barrys’ Brief at 12. According to the Barrys, they alleged in their
response to Nationwide’s preliminary objections that they served the
complaint in October 2022 after receiving the preliminary objections, but the
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trial court disregarded this. They further maintain that, after the court ruled
on Nationwide’s preliminary objections and issued its opinion, they filed an
affidavit of service. The Barrys, therefore, claim that the court erred in
concluding that they presented no evidence of service. Id. at 13-14.
The Barrys also argue that Nationwide was not prejudiced by the delay
in service. According to the Barrys, Nationwide had actual notice of their UIM
claim based on letters they sent to Nationwide regarding their settlement with
Mr. Delacruz and their settlement demand for UIM benefits, to which
Nationwide responded. Id. at 13, 15. They further point out that Nationwide
did not even claim it was prejudiced. Consequently, the Barrys argue that the
trial court erred in taking the extreme measure of dismissing their complaint.
Id. at 12.
For the following reasons, we disagree.
In considering a trial court's order sustaining preliminary objections for
improper service of process,
our standard of review . . . is to determine whether the trial court
committed an error of law. When considering the appropriateness
of a ruling on preliminary objections, the appellate court must
apply the same standard as the trial court. When considering
preliminary objections, all material facts set forth in the
challenged pleadings are admitted as true, as well as all inferences
reasonably deducible therefrom. Preliminary objections which
seek the dismissal of a cause of action should be sustained only
in cases in which it is clear and free from doubt that the pleader
will be unable to prove facts legally sufficient to establish the right
to relief.
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Bellan v. Penn Presbyterian Med. Ctr., 271 A.3d 506, 509 (Pa. Super.
2022), appeal denied, 283 A.3d 793 (Pa. 2022) (citation omitted).
Rule 1028(a)(1) of the Pennsylvania Rules of Civil Procedure permits a
party to raise preliminary objections based on “improper form or service of a
writ of summons or a complaint.” Pa.R.C.P. 1028(a)(1). This includes failure
to properly serve a complaint in compliance with the Pennsylvania Rules of
Civil Procedure for service of original process. McCreesh v. City of
Philadelphia, 888 A.2d 664, 667 (Pa. 2005).
This Court has stated: “[s]ervice 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. Thus, improper service is not
merely a procedural defect that can be ignored when a defendant
subsequently learns of the action against him or her.” Lerner v. Lerner, 954
A.2d 1229, 1237 (Pa. Super. 2008) (quoting Cintas Corp. v. Lee's Cleaning
Services, Inc., 700 A.2d 915, 917 (Pa. 1997)).
Rule 401 provides that “original process shall be served within the
Commonwealth within 30 days after the issuance of the writ or the filing of
the complaint.” Pa.R.C.P. 401(a). If the plaintiff is unable to serve the
defendant within this time, he/she may file a praecipe for reissuance of the
writ or reinstatement of the complaint in order to continue its validity.
Pa.R.C.P. 401(b). “So long as the plaintiff files [the] writ or complaint before
the expiration of the statute of limitations applicable to [the] cause of action,
the original filing, as well as any subsequent reissuances or reinstatements,
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tolls the statute of limitations.” Gussom v. Teagle, 247 A.3d 1046, 1048
(Pa. 2022).
Recently, in Gussom, our Supreme Court assimilated several major
cases addressing the dismissal of a complaint for lack of service and their
holdings, including Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), Farinacci v.
Beaver Co. Indus. Dev. Auth., 511 A.2d 757 (Pa. 1986) and McCreesh,
supra. The Court articulated the following standard:
In sum, Lamp and its progeny require a plaintiff to make a good-
faith effort in diligently and timely serving process on a defendant.
When a defendant presents a factual dispute as to whether a
plaintiff fulfilled this duty, the plaintiff carries an evidentiary
burden to demonstrate that she met her good-faith mandate. If
a plaintiff presents credible evidence that she made this attempt
at service, then she fulfills her requirement to prove good faith.
If a plaintiff does not present such evidence, then she has failed
to satisfy her evidentiary burden, regardless of whether her
actions (or inaction) were intentional, unintentional, or otherwise.
However, pursuant to McCreesh, a trial court should not punish
a plaintiff by dismissing her complaint where she is able to
establish that her improper but diligent attempts at service
resulted in the defendant receiving actual notice of the
commencement of the action, unless the plaintiff’s failure to serve
process properly evinced an intent to stall the judicial machinery
or otherwise prejudiced the defendant.
Gussom, 247 A.3d at 1057 (emphasis added). It is within the sound
discretion of the trial court to determine whether a good-faith effort to
effectuate notice was made. Id. at 1048.
Here, the trial court concluded that the Barrys failed to satisfy their
burden that they made a good-faith effort to diligently and timely serve the
complaint on Nationwide as required. Trial Court Opinion, 3/14/23, at 3, 5.
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In reaching this decision, the trial court noted that, after the complaint was
filed in March 2022, there was no indication that the Barrys served or
attempted to serve Nationwide for almost a year during the pendency of the
litigation. Id. at 5. In fact, the Barrys admitted that counsel inadvertently
failed to serve the complaint but offered no explanation as to what caused
counsel’s oversight. Id. at 7-8. As the trial court observed, although
unintentional, counsel’s neglect nevertheless does not establish a good faith
effort to effectuate service. Id. at 8 (citing Gussom, 247 A.3d at 1048
(affirming dismissal of a plaintiff’s complaint based on plaintiff’s failure to
timely serve defendant even though the plaintiff’s actions in failing to serve
were not intentional); Farinacci, 511 A.2d at 760 (holding a delay in service
attributable to counsel’s failure to take necessary steps to effectuate service
was insufficient to establish good-faith effort)).
The trial court further found unavailing the Barrys’ claim that, once they
received the preliminary objections, they took steps to serve Nationwide. The
court acknowledged that, on October 4, 2022, one day after the preliminary
objections were filed, the Barrys filed a praecipe to reinstate the complaint
and claimed in their response to the preliminary objections that they served
the complaint on Nationwide by regular and certified mail, return receipt.
However, the trial court highlighted that, they “provided no affidavit of service
or other proof that such an attempt was ever made.” Id. at 5, 8. Instead,
the Barrys only made a bald assertion that the complaint had been sent out
for service. See id. at 3, 8.
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However, the Barrys now claim, for the first time, that they filed an
affidavit of service, and this proves that they actually mailed the complaint to
Nationwide in October 2022, as they claimed in their response to Nationwide’s
preliminary objections. Thus, they contend that the trial court’s disregard of
this mailing and resulting dismissal of their complaint for lack of service was
invalid. Barrys’ Brief at 14.
Upon review of the record, we conclude that reference or reliance on
affidavit of service would be improper in this case. The affidavit of service is
not part of the certified record and therefore, this Court cannot consider it.
See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006). “[A]n
appellate court is limited to considering only the materials in the certified
record when resolving an issue . . . . [U]nder the Pennsylvania Rules of
Appellate Procedure, any document which is not part of the officially certified
record is deemed non-existent.” Id. Moreover, the Barrys’ inclusion of an
updated trial court docket showing that the affidavit was filed with the trial
court (not even an actual, time stamped copy of it) cannot remedy this
deficiency. See id.The emphasis on the certified record is necessary because, unless
the trial court certifies a document as part of the official record,
the appellate judiciary has no way of knowing whether that piece
of evidence was duly presented to the trial court or whether it was
produced for the first time on appeal and improperly inserted into
the reproduced record. Simply put, if a document is not in the
certified record, the Superior Court may not consider it.
Id. at 6-7.
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This is exactly what occurred here. The trial court clearly did not have
the benefit of considering the affidavit of service, as it was filed well after the
trial court entered its order sustaining Nationwide’s preliminary objections and
the notice of this appeal. As such, the document is beyond our scope of review
and the Barrys cannot now use it to prove their claim that service was properly
effectuated.
For these reasons, we conclude that the trial court did not abuse its
discretion or err in determining that the Barrys failed to establish they
engaged in a good-faith effort to serve Nationwide with their complaint in a
diligent and timely manner.
Nevertheless, the Barrys argue that their complaint should proceed
because Nationwide had actual notice of their action for UIM benefits, despite
the lack of service. They maintain that the correspondence they sent to
Nationwide in 2018 put Nationwide on notice of their action in 2022. As such,
Nationwide was not prejudiced, and the trial court should not have sustained
the preliminary’s objections to dismiss their complaint. In support of their
position, they cite McCreesh, supra. Barrys’ Brief at 10, 14-15.
In McCreesh, the plaintiff served the writ of summons on the
Philadelphia City Law Department within the applicable statute of limitations
period, but served it by certified mail, which was procedurally improper. There
was no dispute, however, that the City’s attorney actually received the writ of
summons at that time. See McCreesh, 888 A.2d at 666. The plaintiff later
effected proper service by hand delivery as required, but after the statute of
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limitations had expired. The McCreesh Court determined, however, that the
plaintiff’s technically deficient service by mail constituted a good-faith effort
at notice, where the City’s attorney received actual notice of the litigation
within the statute of limitations and was not otherwise prejudiced. Id. at 666
n.1. Consequently, the Court concluded that the plaintiff made a good-faith
effort to serve the City with notice, even though she did not comply strictly
with the rules. See id. at 674.
In Gussom, the Court explained that McCreesh did not change the
requirement that a plaintiff must act diligently in serving the complaint:
the Court sought to resolve a pattern of conflicting opinions from
the intermediate courts. On the one hand, some of those decisions
required plaintiffs to comply strictly with the rules regarding
service to satisfy the Lamp-Farinacci good-faith requirement,
while, on the other hand, different panels allowed “a more flexible
approach, excusing plaintiffs’ initial procedurally defective service
where the defendant has actual notice of the commencement of
litigation and is not otherwise prejudiced[.]” McCreesh, 888 A.2d
at 666. After explaining that “[n]either our cases nor our rules
contemplate punishing a plaintiff for technical missteps where he
has satisfied the purpose of the statute of limitations by supplying
a defendant with actual notice[,]” the Court stated that it
embraced the logic of cases which “would dismiss only those
claims where plaintiffs have demonstrated an intent to stall the
judicial machinery or where plaintiffs’ failure to comply with the
Rules of Civil Procedure has prejudiced defendant.” McCreesh,
888 A.2d at 674.
Although McCreesh made clear that a plaintiff could fulfill her
good-faith service mandate without strictly complying with the
service rules as long as her efforts resulted in actual notice of the
lawsuit to the defendant, like Farinacci, McCreesh did nothing
to modify a plaintiff's duty to act diligently to serve notice of
the commencement of an action so as not to undermine the
policies that drive the statute of limitations. Nor, for that matter,
did McCreesh change the rule clarified in Farinacci that the
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plaintiff carries an evidentiary burden to prove that she made a
good-faith effort to effectuate service of process in a timely
manner. To the contrary, as observed throughout this opinion,
the McCreesh Court alluded to this evidentiary requirement. See
id. at 672 (“We subtly altered our holding in Lamp in Farinacci,
requiring plaintiffs to demonstrate ‘a good-faith effort to
effectuate notice of commencement of the action.’”).
Gussom, 247 A.3d at 1056-57.
Here, the trial court properly concluded that McCreesh did not apply.
The court explained:
[T]he “flexible approach” adopted in McCreesh concerns
“technical missteps where [plaintiff] has satisfied the purpose of
the statute of limitations by supplying a defendant with actual
notice.” This refers to cases where service was defective but
good-faith efforts were made such that defendant had “actual
notice of the commencement of litigation and was not otherwise
prejudiced.” The Pennsylvania Supreme Court clarified that this
does not “modify a plaintiff’s duty to act diligently to serve notice
of the commencement of an action so as not to undermine the
policies that drive the statute of limitations.”
Trial Court Opinion, 3/14/23, at 7. As discussed above, the trial court
concluded that, unlike McCreesh, there was no evidence on the record that
the Barrys took any steps, either proper or improper, to effectuate service
diligently and in good faith after they filed their complaint. Consequently,
they did not meet their burden of proof. Id.
The trial court also concluded that the Barrys’ correspondence to
Nationwide did not provide Nationwide with actual notice of a formal
complaint. The court logically explained:
[The Barrys] produced two letters from Nationwide dated June 13,
2018 and October 5, 2020 responding to settlement inquiries as
proof that Nationwide had "actual notice" of their UIM claim,
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despite the delay in service. They argued that because Nationwide
was aware of their UIM claim, they were on notice of this action
and were not prejudiced by the delay in service. Those brief
correspondences, however, took place well before this action was
initiated. Nationwide could not have been on notice of a complaint
filed in March 2022 based on letter correspondence exchanged
once in 2018 and once in 2020.
Further, just because Nationwide previously might have known
about the UIM claim does not prove they had actual notice of this
action, initiated years after they informally sought those benefits
under their insurance policy. The relevant time frame concerning
notice of the commencement of this action could not have begun
before the action was commenced, and there is no evidence on
the record after the commencement of this action showing that
Nationwide had actual notice of its commencement.
Trial Court Opinion, 3/14/23, at 6. The Barrys cite no authority to support
their claim that notice of a potential claim is the same as the notice of a formal
complaint or actual lawsuit.
Thus, contrary to the Barrys’ contention, Nationwide did not have actual
notice of their action. Accordingly, there was no reason for the trial court to
consider whether the Barrys sought to stall the litigation by their conduct or
whether Nationwide was prejudiced.
Based upon the foregoing, we conclude that the trial court did not abuse
its discretion in determining that the Barrys failed to establish that they made
a good-faith effort to serve Nationwide. As such, the court did not err in
sustaining Nationwide’s preliminary objections for lack of service and
dismissing the Barrys’ complaint. Accordingly, we affirm the trial court’s
order.
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Order affirmed. Judge Stabile joins. Judge McLaughlin issues a
concurring memorandum.
Date: 11/14/2023
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