Kathleen, J. v. Sugarhouse Casino ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES FOSTER AND KATHLEEN : IN THE SUPERIOR COURT OF
FOSTER, H/W : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1565 EDA 2020
SUGARHOUSE CASINO AND :
SUGARHOUSE HSP GAMING, L.P. :
Appellees
Appeal from the Order Entered July 24, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 190804702
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: Filed: September 2, 2021
James Foster was injured after he fell while patronizing the Sugarhouse
Casino. He and his wife, Kathleen Foster (collectively “the Fosters”) filed a
Writ of Summons, and then later a Complaint, well within the applicable
statute of limitations. These were properly served on the Sugarhouse Casino
and Sugarhouse HSP, L.P. (hereinafter collectively “Sugarhouse”). That action
was withdrawn without prejudice.
The Fosters re-filed a complaint on August 29, 2019. The re-filed
complaint was reinstated by praecipe on September 30, October 31, and
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* Retired Senior Judge assigned to the Superior Court.
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December 2, 2019. The trial court subsequently dismissed the Fosters’ re-filed
complaint with prejudice after Sugarhouse filed preliminary objections
asserting that the Fosters had failed to timely serve the re-filed complaint. On
appeal, the Fosters contend that the court erred as Sugarhouse suffered no
prejudice and had actual notice of the claims from the earlier filed complaint.
We conclude that the trial court did not err in finding Sugarhouse did not have
actual notice. Further, we conclude that under Gussom v. Teagle, 247 A.3d
1046 (Pa. 2021), we need not address the Fosters’ claim that the court abused
its discretion in finding that Sugarhouse suffered prejudice from the untimely
service. We therefore affirm.
The Fosters’ August 29, 2019 amended complaint was filed less than a
week before the expiration of the limitations period on September 2, 2019.
The Fosters concede that they neglected to serve Sugarhouse until November
30, 2019. Sugarhouse filed preliminary objections arguing the failure of the
Fosters to provide them with notice of the new lawsuit required dismissal of
the action under Lamp v. Heyman, 366 A.2d 882 (Pa. 1976). The trial court
granted Sugarhouse’s preliminary objections dismissing the action with
prejudice, concluding the Fosters failed to make a good faith effort to
effectuate service. The Fosters responded with this timely appeal.
When reviewing an order sustaining preliminary objections, our
standard of review is de novo and our scope of review is plenary. See
Trexler v. McDonald's Corp., 118 A.3d 408, 412 (Pa. Super. 2015).
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Therefore, this Court must determine whether the trial court erred as a matter
of law. See id.Furthermore, “[t]his Court will reverse the trial court's decision
regarding preliminary objections only where there has been an error of law or
abuse of discretion.” Excavation Techs., Inc. v. Columbia Gas Co. of
Pennsylvania, 936 A.2d 111, 113 (Pa. Super. 2007). “When sustaining the
trial court's ruling will result in the denial of claim or a dismissal of suit,
preliminary objections will be sustained only where the case [is] free and clear
of doubt.” Id.“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.” Trexler, 118 A.3d at 412 (quoting Cintas Corp. v.
Lee’s Cleaning Servs., 700 A.2d 915, 917 (Pa. 1997)). “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 the action against him or her.” Cintas, 700 A.2d at 917-18. Pennsylvania
Rules of Civil Procedure 1028 allows a defendant to file a preliminary objection
on the basis that the plaintiff did not properly serve the complaint. See
Pa.R.C.P. 1028(a)(1).
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On appeal, the Fosters first argue that the trial court erred in sustaining
Sugarhouse’s preliminary objections because Sugarhouse had actual notice of
the new lawsuit. The Fosters assert that the new complaint contained the
same nucleus of operative facts and claims as the original lawsuit. The Fosters
therefore claim the court erred in dismissing their new complaint with
prejudice.
The purpose of the statute of limitations is to discourage delay and the
presentation of stale claims that may prejudice the defense of such claims.
See McCreesh v. City of Philadelphia, 888 A.2d 664, 674 (Pa. 2005). The
statute of limitations period for personal injury claims is two years. See 42
Pa.C.S.A. § 5524(2). Additionally, Pennsylvania Rule of Civil Procedure 401(a)
requires plaintiffs to serve process within thirty days after the issuance of a
writ or the filing of a complaint. See Pa.R.C.P. 401(a). Rule 401(b)(2) permits
plaintiffs to reinstate a complaint in thirty-day increments. See Pa.R.C.P.
401(b)(2). If the plaintiff reinstates a Complaint, the statute of limitations
period will toll only if the plaintiff makes a good faith effort to effectuate notice
of commencement of the action to the defendant. See Lamp, 366 A.2d at
889.
A complaint is effective to commence an action and operates to toll the
applicable statute of limitations. However, the plaintiff must refrain from a
course of conduct of having the complaint repeatedly reinstated without
serving the defendant within 30 days of the reinstatement:
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“In the seminal case of Lamp v. Heyman, 469 Pa. 465,
366 A.2d 882 (1976), this Court sought to end abuses of
process by plaintiffs who tolled the statute of limitations by
filing a writ of summons, had the writ repeatedly reissued,
and deliberately failed to notify the defendant of the
pending litigation.” McCreesh v. City of Philadelphia,
585 Pa. 211, 888 A.2d 664, 665 (2005). “This process,
while technically compliant with the Rules of Civil
Procedure, nonetheless defeated the purpose of the statute
of limitations, which is to protect defendants from stale
claims.” Id. Thus, in Lamp, this Court held that “a writ of
summons shall remain effective to commence an action
only if the plaintiff then refrains from a course of conduct
which serves to stall in its tracks the legal machinery he
has just set in motion.” Lamp, 366 A.2d at 889. This
“Lamp rule” applies equally to actions commenced by way
of the filing of a complaint.
We refined the Lamp rule in Farinacci v. Beaver County
Industrial Development Authority, 510 Pa. 589, 511
A.2d 757, 759 (1986), holding that “Lamp requires of
plaintiffs a good-faith effort to effectuate notice of
commencement of the action.” In
addition, Farinacci clarified that: (1) the plaintiff carries
an evidentiary burden of proving that she made a good-
faith effort to ensure that notice of the commencement of
an action was served on the defendant, McCreesh, 888
A.2d at 672; and (2) “[i]n each case, where noncompliance
with Lamp is alleged, the [trial] court must determine in
its sound discretion whether a good-faith effort to
effectuate notice was made[,]” Farinacci, 511 A.2d at
759.
This Court's most recent decision in the Lamp-line of cases
is McCreesh, supra. In McCreesh, the Court expressed
that when plaintiffs’ improper actions in serving original
process put defendants on actual notice of the
commencement of actions, trial courts should “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.
Gussom, 247 A.3d at 1048.
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Moreover, this Court has determined that “[w]hat constitutes a ‘good
faith’ effort to serve legal process is a matter to be assessed on a case by case
basis.” Moses v. T.N.T. Red Star Exp., 725 A.2d 792, 96 (Pa. Super. 1999).
“The inquiry into whether a plaintiff acted in good faith lies within the sound
discretion of the trial court.” Englert v. Fazio Mech. Servs., Inc., 932 A.2d
122, 125 (Pa. Super. 2007) (citation and quotations omitted).
A plaintiff may demonstrate a good faith effort even though they have
made a technical misstep that violates the Rules of Civil Procedure. See
Gussom, 247 A.3d at 1056. However, a plaintiff must still act diligently to
serve notice on the defendant so as not to undermine the policies underlying
the statute of limitations. “Although there is no mechanical approach to be
applied in determining what constitutes a good faith effort, it is the plaintiff’s
burden to demonstrate that his efforts [to effectuate service] were
reasonable.” See Englert, 932 A.2d at 124-25. “If a plaintiff presents credible
evidence that she made this attempt at service, then she fulfills her
requirement to prove good faith.” Gussom, 247 A.3d at 1057.
If the plaintiff fails to establish a good faith effort at service, then she
may still evade dismissal of her complaint if she can establish that the
defendant had actual notice of the action; she must not have acted
intentionally to stall the litigation process; and the defendant suffered no
prejudice from the lack of formal service before the limitations period ended.
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See Gussom, 247 A.3d at 1056-1057. The exact language utilized by our
Supreme Court is that:
[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 1058. We need not reach this last issue here, as we
conclude the trial court did not err in finding that Sugarhouse did not have
actual notice of the amended complaint.
Here, the Fosters concede that, “through the inadvertence of counsel,”
they did not serve amended complaint on Sugarhouse until nearly 90 days
after the expiration of the statute of limitations. See Appellants’ Brief, at 9.1
Despite this, they contend the trial court erred in dismissing their complaint
with prejudice. See id. at 10 (“[The Fosters] would ask this Court to avoid the
draconian action of dismissing a Complaint with Prejudice...”). In pursuit of
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1 While the Fosters make boilerplate allegations that they made a good-faith
effort to serve the amended complaint, neither of their listed issues on appeal
challenge the trial court’s finding that they did not. Rather, their arguments
focus on whether Sugarhouse had actual notice and whether Sugarhouse
suffered any prejudice from the late service of the amended complaint. To the
extent the Fosters attempt to raise a challenge to the trial court’s finding that
they did not make a good faith effort at service, we find they have waived it
by failing to meaningfully develop it.
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this contention, the Fosters present two arguments. As noted previously,
however, we need only reach the first.
The Fosters claim the trial court erred in concluding that Sugarhouse did
not have actual notice of the action. They assert that Sugarhouse defendants
“were well aware of the fact that [the Fosters] intended to pursue litigation
against them and that [Sugarhouse defendants] were notified well within the
Statute of Limitations.” Appellants’ Brief, at 10. The Fosters highlight that their
previous complaint in this matter had been dismissed without prejudice after
the parties had engaged in limited discovery. The Fosters argue that under
these circumstances, Sugarhouse had actual notice of the claims contained in
the amended complaint.
While we can find no precedent directly dealing with the present
circumstances, we note that when a voluntary nonsuit is entered, "the general
effect ... is to terminate the action without an adjudication of the merits and
to place the plaintiff in the same position as if the action had never been
instituted.” Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474,
476 (Pa. Super. 2014) (citation omitted). Consequently, a second complaint on
the same facts “is considered a new action and not a continuation of the initial
action.” Levitt v. Patrick, 976 A.2d 581, 588 (Pa. Super. 2009) (citation
omitted).
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The Fosters make no attempt to distinguish between a voluntary nonsuit
and a dismissal without prejudice to re-file. Further, we see no reason to do
so. A dismissal is a dismissal. The Sugarhouse defendants were entitled to
assume the matter had been resolved unless they received notice otherwise.
As a result, the relevant question is whether Sugarhouse had actual
notice of the amended complaint. Pure logic dictates that Sugarhouse could
not have actual notice of a complaint that did not yet exist until August 29,
2019. And the Fosters do not argue that Sugarhouse had actual notice of the
amended complaint until November 30, 2019. Accordingly, we conclude the
trial court did not err in finding that Sugarhouse did not have actual notice.
Given this conclusion, we need not reach the Fosters second issue on
appeal, where they challenge the trial court’s conclusion that Sugarhouse
suffered prejudice from the untimely service of the amended complaint. We
therefore affirm the order sustaining Sugarhouse’s preliminary objections and
dismissing the Fosters’ amended complaint with prejudice.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/21
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