M.R. Holbrook & D.L. Holbrook, his wife v. PA DOT

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mason R. Holbrook and
Diane L. Holbrook, his wife,
Appellants
Vv. > No. 372 C.D. 2021
: Submitted: November 5, 2021
Pennsylvania Department of
Transportation
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 28, 2022
Mason R. Holbrook (Husband) and Diane L. Holbrook (Wife)
(collectively, Plaintiffs) appeal the order of the Beaver County Court of Common
Pleas (trial court) sustaining the Preliminary Objections (POs) of the Pennsylvania
Department of Transportation (PennDOT/Defendant) in the nature of a demurrer and
dismissing Plaintiffs’ Complaint. We affirm.
On September 29, 2018, at approximately 10:30 p.m., Husband was
walking along Pennsylvania Route 68 in Bridgewater Township, Beaver County, in
a northerly direction. Complaint [5, Original Record (OR) at 7.' Husband fell into
an exposed grate that purportedly had been allowed to exist in a dangerous condition,
' Because the Original Record was filed electronically and was not paginated, the page
numbers referenced in this memorandum opinion reflect electronic pagination.
causing Husband serious injury. Complaint (6; OR at 7. At all relevant times,
PennDOT was primarily and/or secondarily responsible to maintain the grate
properly, adequately, and safely. Complaint 9/7, 8; OR at 7. The grate’s dangerous
condition existed for a sufficient period so that PennDOT had actual and/or
constructive notice of its dangerous condition. Complaint (9; OR at 7.
Based on PennDOT’s alleged negligence, Husband suffered a left foot
metatarsal fracture; a fractured distal shaft of the second metatarsal; and left foot
sprain/strain. Complaint (12; OR at 8-9. As a result of these injuries, Husband
suffered pain, mental anguish, and embarrassment; is unable to enjoy the ordinary
pleasures of life; has had to undergo medical treatment; has incurred bills for medical
treatment; and has been unable to perform his normal daily activities. Complaint
q13; OR at 9. Additionally, Wife has been deprived of Husband’s services and
incurred medical bills for Husband’s necessary medical treatment. Complaint 414;
OR at 9-10.
Accordingly, on September 3, 2020, Plaintiffs filed the Complaint
against PennDOT seeking damages and judgment in their favor. Complaint at 1-9;
OR at 4-12. On September 22, 2020, Deputy Joshua Long of the Sheriff’s Office of
Dauphin County served the Complaint on Tiffany Ramsey for PennDOT at the
Keystone Building, 400 North Street, Harrisburg. /d. at 15. On October 6, 2020,
Tony Guy, Sheriff of Beaver County, deputized the Sheriff of Dauphin County to
serve the Complaint, and obtained the Shernff’s Return of Service on PennDOT from
Dauphin County, and filed the Return of Service in the trial court. /d. at 14.
> The negligence and loss of consortium causes of action have a two-year statute of
limitations. See, e.g., Sullivan v. Haywood (Pa. Super., No. 2043 MDA 2013, filed March 16,
2015), slip op. at 7 (“Pursuant to [Section 5524 of the Judicial Code,] 42 Pa. C.S. §5524, the statute
of limitations applicable to negligence and loss of consortium claims is two years from the date of
the injury. Once the statute of limitations has run, the injured party is barred from suing.”).
2
On October 14, 2020, Sandra Kozlowski, Deputy Attorney General
(Defendant’s Counsel), sent Plaintiffs’ Counsel an e-mail stating, in relevant part:
I represent PennDOT in the above matter which was
recently received by this office. At present, I have not
received any documentation from PennDOT relative to
your clients’ claims. I have also not received any of the
service documentation. While I believe that PennDOT
was served as this case was referred to our office, I don’t
have any indication that the Office of Attorney General
[(OAG)] was served in this matter.
Please understand that the Commonwealth is not waiving
the requirements of 37 Pa. Code $111.1! for original
3 Section 111.1(a), (b), and (d)(2) states, in pertinent part:
(a) Service of process on Commonwealth agencies in actions
brought under 42 Pa.C.S. §§8501-8564 (relating to matters
affecting government units) shall be made at the principal office of
the defendant agency as set forth in subsection (b) .... Service of
process shall also be made at the principal [OAG] as set forth in
subsection (b), and at the [regional OAG| as set forth in subsection
(d).
(b) The addresses of the principal offices designated to accept
service of an agency are as follows:
7k OK ok
[OAG] Torts Litigation Unit 15th Floor, Strawberry Square,
Harrisburg, Pennsylvania 17120
7k OK ok
[PennDOT] Office of Chief Counsel 9th Floor, Commonwealth
Keystone Building 400 North Street, Harrisburg, Pennsylvania
17120-0041
7k OK ok
(Footnote continued on next page...)
service of process. I would sign an Acceptance of Service
on behalf of the OAG with the understanding that
PennDOT would have 20 days from the date of the
Acceptance to file a responsive pleading. Please let me
know how you would like to proceed.
OR at 50. The following day, Plaintiffs’ Counsel e-mailed Defendant’s Counsel
proof of service of the Complaint on PennDOT at PennDOT’s principal office. Jd.
at 55.
On December 10, 2020, Plaintiffs filed and served on Defendant’s
Counsel a Notice of Service of Interrogatories, Request for Production of
Documents, and Request for Admissions Directed to Defendant. OR at 20-23. On
December 21, 2020, Defendant’s Counsel sent Plaintiffs’ Counsel an e-mail stating,
in relevant part:
I received the message from the [trial court jJudge. I
would be happy to call her back this afternoon or
(d) The [OAG] designated for service of process only in actions
where venue is located in the following counties is as follows:
7k OK ok
(2)... Beaver ...—Torts Litigation Unit, 4th Floor, Manor
Building, 564 Forbes Avenue, Pittsburgh, Pennsylvania 15219.
37 Pa. Code §111.1(a), (b), (d)(2) (emphasis added). See also Pa. Const. art. I, §11 (“Suits may
be brought against the Commonwealth in such manner, in such courts and in such cases as the
Legislature may by law direct.”); Section 8523(b) of the Judicial Code, 42 Pa. C.S. §8523(b)
(“Service of process in the case of an action against the Commonwealth shall be made at the
principal or local office of the Commonwealth agency that is being sued and at the [OAG].”);
Pa.R.Civ.P. 400(a) (Absent limited exceptions, “original process shall be served within the
Commonwealth only by the sheriff.”); Pa.R.Civ.P. 422(a) (“Service of process upon the
Commonwealth... ora department. . . shall be made at the office of the defendant and the [OAG]
by handing a copy to the person in charge thereof.”); Reaves v. Knauer, 979 A.2d 404, 410 (Pa.
Cmwlth. 2009) (“[The] failure to serve a copy of the complaint on the Attorney General cannot be
excused. This omission renders [the p]laintiff’s service defective and deprived the trial court of
jurisdiction over [the defendants].”) (citation omitted).
4
tomorrow when you are available. First, my appearance is
not entered because proper service has not been made
pursuant to statute. In my e-mail of October 14, 2020, I
identified the service defect and gave you the [regulation],
37 Pa. Code §111.1. You responded by sending me
service documents only demonstrating that PennDOT had
been served. That is not sufficient service under the
[regulation]. The [OAG] MUST be served in addition to
the state agency. In my October 14, 2020 e-mail I made
the offer of signing an Acceptance of Service on behalf of
the OAG, thereby saving you and your client the expense
of service by Sheriff.
If you are not willing to correct the defect, then I will file
POs. The Law is very clear that the [trial c]ourt does not
have jurisdiction over the matter until the service
requirements are met under the statute.
OR at 51 (emphasis in original).
That same day, an employee in Plaintiffs’ Counsel’s office sent an e-
mail to Deputy Attorney General Kozlowski stating, in relevant part:
I am writing on behalf of [Plaintiffs’ Counsel] relative to
the above case. We apologize for missing the e[-]mail
regarding proper service of the OAG. Ihave attached here
an Acceptance of Service if you are still willing to sign on
behalf of the OAG pursuant to your original e[-]mail.
OR at 52.
Ultimately, on January 5, 2021, PennDOT filed POs alleging, inter alia,
a lack of in personam jurisdiction based on Plaintiffs’ failure to properly serve the
OAG. See OR at 28-29. On March 15, 2021, following argument, the trial court
issued an order sustaining the POs and dismissing Plaintiffs’ Complaint. See id. at
100. Plaintiffs then filed the instant timely appeal of the trial court’s order, asserting
that the trial court erred in sustaining the POs and dismissing their Complaint
because: (1) Defendant’s Counsel had agreed in writing to accept late service of
process, but reneged on the agreement and violated her duty of fairness by filing the
5
POs; and (2) they acted in good faith by twice attempting service of process upon
the OAG, the OAG had sufficient notice that the Complaint was filed against
PennDOT, and the OAG and PennDOT were not prejudiced because substantive
rights were not affected by the defective service of process.
However, upon review,* we have determined that this matter was ably
disposed of in the comprehensive and well-reasoned Memorandum Opinion of the
Honorable Laura J. Tocci. Accordingly, we affirm the trial court’s order on the basis
of the opinion in Holbrook v. Pennsylvania Department of Transportation (C.P.
Beaver, Case No. 10906-2020, filed March 15, 2021).
MICHAEL H. WOSJCIK, Judge
+ “Where a trial court dismisses a complaint based on preliminary objections, this Court’s
review is limited to determining whether the trial court committed an error of law or an abuse of
discretion.” Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014). Additionally, “‘[w]hether
a court may disregard a litigant’s defective service of process [...] is vested within the sound
discretion of that court.’ Konya v. District Attorney of Northampton County, [669 A.2d 890, 892
(Pa. 1995)]. We will not overturn a trial court’s rigid application of procedural rules unless the
trial court abused its discretion. Jd.” Miller v. Klink, 871 A.2d 331, 337 (Pa. Cmwlth. 2005). See
also Luzerne County Children & Youth Services v. Department of Human Services, 203 A.3d 396,
398 (Pa. Cmwlth. 2019) (“An abuse of discretion occurs if, in reaching a conclusion, the law is
overridden or misapplied or the judgment exercised is manifestly unreasonable or is the result of
partiality, prejudice, bias, or ill will.”) (citation omitted).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mason R. Holbrook and
Diane L. Holbrook, his wife,
Appellants
v. : No. 372 CD. 2021
Pennsylvania Department of
Transportation
ORDER
AND NOW, this 28" day of April, 2022, the Order of the Beaver
County Court of Common Pleas dated March 15, 2021, is AFFIRMED.
MICHAEL H. WOSJCIK, Judge
IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY
PENNSYLVANIA
MASON R. HOLBROOK and
DIANE L. HOLBROOK, his wife,
CIVIL DIVISION — LAW
Plaintiffs,
VS. . No
Case No.: 10906-2029, my
PENNSYLVANIA DEPARTMENT Oye =.
OF TRANSPORTATION, ROD 5
Defendant. Q 5 moa
298 2
MEMORANDUM OPINION RBS
3 oS:
Oo
Mason R. Holbrook and his wife, |Diane L. Holbrook (hereinafter “Plaintiffs”),
initiated this civil action against the P
ennsylvania Department of Transportation
(hereinafter “PennDot”) alleging that on September 29, 2018, Plaintiff Mason was injured
due to Defendant’s negligent maintenance of a grate located on Route 66, Bridgewater,
PA. PennDot’s negligence is allegedly the
of the grate caused him to fall and suffer j
cause of Plaintiffs’ injuries after the condition
njuries, along with those damages claimed by
his wife arising from the same. Plaintiffs’ Complaint includes two causes of action: Count
I — Plaintiff Mason alleges Negligence against Defendant; and Count II — Plaintiff Diane
alleges Loss of Consortium against Defendant. Plaintiffs demand judgment against
Defendant seeking damages in an amount
beyond the local arbitration limits.
Plaintiffs commenced this action by filing a Complaint on September 3, 2020,
within the two-year statute of limitations,
by Deputy Joshua M. Long on Septembe
Office of the Attorney General (hereina
Service was properly effectuated on PennDot
r 22, 2020. However, regarding service to the
fter “OAG”), Sandra A. Kozlowski, Esq. sent
Plaintiff's Counsel an e-mail on October 14, 2020 notifying them of a service defect under
Ganssi yo aat4
37 Pa. Code § 111.1. The e-mail also included a provisional offer to accept service on behalf
of the Pennsylvania OAG.* In whole, the e-mail stated:
I represent PennDOT in the above matter which was recently
received by this office. At| present, I have not received any
documentation from PennDOT relative to your client’s claims. I
have also not received any of|the service documentation. While I
believe that PennDOT was served as this case was referred to our
office, I don’t have any indication that the Office of the Attorney
General was served in this matter.
Please understand that the (Commonwealth is not waiving the
requirements of 37 PA. Code § 111.1 for original service of process.
I would sign an Acceptance of Service on behalf of the OAG with
the understanding that PennDOT would have 20 days from the
date of the Acceptance to file a responsive pleading. Please let me
know you would like to proceed.2
On October 15, 2020, Plaintiff's Counsel sent a responsive e-mail which stated, in
its entirety, “[S]ervice and our letter sent gn 11-15-18. Thanks.”3 The e-mail also included
two attachments: the Sheriff's Return of Service to PennDot and a letter sent to PennDot,
dated November 15, 2018. 4 The letter sent to PennDot was referred to by Plaintiffs
Counsel as formal notice under 42 Pa. C.S.A § 5522 of their intent to commence a possible
action against PennDot.5 No letter was submitted to the OAG under the requirements of
42 Pa. C.S.A § 5522.
Defendant filed Preliminary Objections and a Brief in Support of the same on
January 5, 2021 in accordance with 231 Pa. Code § 1028(a)(1). This Court heard
! Preliminary Objections of Defendant, Exhibit A.
2 Preliminary Objections of Defendant, Exhibit A.
3 Preliminary Objections of Defendant, Exhibit B.
4 Preliminary Objections of Defendant, Exhibit B.
5 Preliminary Objections of Defendant, Exhibit B.
arguments in support of, and in oppositio
February 10, 2021 and the Court’s decision
Is
The sole issue before the Court is wh
has been established by proper service of p1
properly serve Defendant, eliminating +
Defendant.
STANDARI
In Bower v. Bower, 531 Pa. 54, 57, 6
Pennsylvania Supreme Court addressed
objections in the nature of a demurrer as f¢
Preliminary objections, the
dismissal of a cause of actiol
that are clear and free from d
225, 213 A.2d 362, 364 (1965
is whether it is clear and fr
pleaded that the pleader w
sufficient to establish his rig
Pa. 560, 563, 353 A.2d 833, §
mn to, Defendant’s Preliminary Objections on
is explained in the following analysis.
SUE
ether in personam jurisdiction over Defendant
rocess by Plaintiff or whether Plaintiff failed to
this Court’s in personam jurisdiction over
D OF REVIEW
11 A.2d 181, 182 (1992) (citations omitted), the
1 the standard for addressing preliminary
allows:
> end result of which would be
nh, Should be sustained only in cases
pbubt. Baker v. Brennan, 419 Pa. 222,
). The test on preliminary objections
ee from doubt from all of the facts
ill be unable to prove facts legally
tht to relief. Firing v. Kephart, 466
835 (1976).
In addressing this type of preliminary objection, the trial court must accept, as
true, all of the well-pleaded facts, along \
therefrom. Jd. In order for a trial court t
appear with certainty that the law will not
of Lancaster, 696 A.2d 884, 886 (Pa. Cmv
the demurrer should be sustained, ther
399
overruling it.” Bruno v. Erie Insurance Ci
with any reasonable inferences that may arise
b sustain such preliminary objections, it must
allow recovery. East Lampeter Twp. v. County
vith. 1987). “If doubt exists concerning whether
1 ‘this doubt should be resolved in favor of
)., 106 A.3d 48, 56 (Pa. 2014), quoting Bilt-Rite
3
v. The Architectural Studio, 866 A.2d 270, 274 (Pa. 2005). These principles govern
analysis of defendants’ preliminary objections in the form of a demurrer.
LEGAL ANALYSIS
Under both statute and court ru!
Commonwealth party is directed to also s
Pa.R.C.P. 422(a). Specifically, 37 Pa. Cod
Commonwealth agencies ... shall be made
as set forth in subsection (b) ... Service of p1
of the Attorney General as set forth in subse
as set forth in subsection (d).” 37 Pa. Code
designated for service of process only in a
e, a party that is serving process on any
prve it on the OAG. 42 Pa.C.S. §8523(b) and
p § 111.1 provides that “Service of process on
at the principal office of the defendant agency
rocess Shall also be made at the principal office
ction (b), and at the Office of Attorney General
§ 111.1(a). “The office of the Attorney General
ctions where venue is located in the following
counties is as follows: ... Beaver — Torts Litigation Unit, 4 Floor, Manor Building, 564
Forbes Avenue, Pittsburgh, Pennsylvania 1
5219.” 37 Pa. Code. § 111.1(d)(2).
The overarching rule hinges on the firm notion that “shall” refers to an act
that is mandatory. See Coretsky v. Bd. of Commissioners, 520 Pa. 513, 518, 555
A.2d 72, 74 (1989) (opining that “by definition, ‘shall’ is mandatory”). The
relevant portion of § 37 Pa. Code § 111.1 states that “[S]ervice of Process on
Commonwealth agencies ... shall be made ...” Applying the established
interpretation, this Court deems service u
pon both the principal OAG and the
office designated within Beaver County is mandatory for this Court to have in
personam jurisdiction over Defendant.
Plaintiffs commenced this action on September 3, 2020. Shortly
thereafter, Plaintiffs served PennDot on September 22, 2020. Pursuant to 37 Pa.
Code § 111.1, the OAG was also required to be served. While Plaintiffs argue that,
during their e-mail exchange, Counsel for Defendant agreed to accept service on
behalf of the OAG with no deadline,® Counsel for Defendant states clearly that the
OAG was not served and that Defendants were not waiving § 111.1 and the
requirements of service.?7 Rather, Counsel for Defendant would sign an
Acceptance of Service on behalf of the OAG if an extension to file a responsive
pleading was provided.8 Counsel for Plaintiff never responded to that stipulation
and never effected service.
Despite other correspondences between the parties’ Counsel, on
December 21, 2020, after a case management conference, Plaintiffs’ Counsel e-
mailed Defendant’s Counsel apologizing for missing the e-mail regarding proper
service of the OAG and attached an Acceptance of Service if Defendant’s Counsel
was still willing to sign on behalf of the OAG.9 The Acceptance of Service was
never signed on Defendant’s behalf. Shortly thereafter, Defendant filed
Preliminary Objections raising the issue of improper service due to lack of
personal jurisdiction.1°
In addition to the requirements af service in regards to where and to
whom, there is also a requirement for the timing. Original process shall be served
8 Plaintiff's Response to Preliminary Objections of Defendant, { 4.
? Preliminary Objections of Defendant, Exhibit B.
8 Preliminary Objections of Defendant, Exhibit B.
° Plaintiff's Response to Preliminary Objections of Defendant, Exhibit D.
The Court is deciding this matter pursuant to 1028(a){1) and not to the statute of limitations which is implicated. It
should be noted that the Plaintiff did not file preliminary objections to the preliminary objections as would be
procedural requirement on that issue... Farinacci v. Beaver Cty. Indus. Dev. Auth., 510 Pa. 589, 51] A.2d 757
(1986).
within the Commonwealth within thirty (30) days after the issuance of the writ
or the filing of the Complaint. Pa. R.C.P. No. 401.
Pursuant to Pa. R.C.P. No. 401, the deadline for service upon PennDot and
the OAG was October 3, 2020. The Plaintiff has the burden to show that a good
faith effort was made to effectuate service on the OAG. Leidich v. Franklin, 394
Pa. Super. 302, 575 A.2d 914 (1990). During oral argument, Counsel for Plaintiff
merely stated that they “believed they made a good faith effort to effectuate
service.” They followed this by stating that they could have reissued the complaint
and served it via sheriff, but in their minds, they thought that they had an
agreement. The fact of the matter is that|mere belief and thought is not good
enough. See Farinacci at 597 (dismissing Plaintiffs action due to failing to provide
an explanation for counsel’s inadvertence which could substantiate a finding that
Plaintiff made a good faith effort to effectuate service). The OAG was not served
at all, let alone within the required timeframe. Further, the complaint was never
reinstated by the Plaintiff after the original filing on September 3, 2020. Simple
neglect and mistake to fulfill the responsibility to see that requirements for
service are carried out is enough to constitute a lack of good faith on the part of
the plaintiff. Rosenberg v. Nicholson, 408 Pa. Super. 502, 597 A.2d 145 (1991).
The only time a court may give a plaintiff the opportunity to cure the defect
is where there is no prejudice suffered by the opposing party. Saleem v.
Department of Corrections, 238 A.3d 544 (2020). The court has held that where
the OAG does not receive actual notice ofjthe lawsuit, the Defendant would have
been prejudiced if Plaintiff was allowed ta commence the action after the Statute
of Limitations has expired. Rosenberg at 507; Compare McCreesh v. City of
6
Philadelphia, 585 Pa. 211, 888 A.2d 664 (2
prejudiced due to the fact that it had actual
copy of a Writ prior to the expiration of bo
30-day period of service).
PennDot argues that to permit serv
and the court agrees. The law provides the
005) (finding that Defendant was not
notice of the litigation by means of a
ith the Statute of Limitations and the
rice at this time would be prejudicial
Defendant with the opportunity to be
represented by the OAG. See Reaves v. Knauer, 979 A.2d 404 (Pa. Commw. Ct.
2009) (opining that in actions against Cot
entitled to representation by the Attorney
service to the OAG, the defendant is
mmonwealth parties, defendants “are
General”). Without proper and timely
stripped of a fundamental right to
representation. The Plaintiff had a reasongble amount of time to cure the defect
of service. Even after Defendant’s Counsel
the defect by signing an Acceptance of Ser
failed to do so. Such a failure to serve th
defect. See Kreidie v. Department of Reve
(stating that such a failure “cannot be o}
gave Plaintiff's Counsel a way to cure
vice on behalf of the OAG, the Plaintiff
e Attorney General constitutes a fatal
nue, 156 A.3d 380 (Pa. Cmwlth. 2017)
verlooked,” “cannot be excused,” and
“cannot be waived,” and therefore constitutes a “fatal defect appearing on the face
of the record”). Thus, the court concludes
Plaintiff has failed to effectuate proper ar
action shall be dismissed.
that since the statute has expired and
d timely service to the OAG Plaintiff's
CONCLUSION
Based on the foregoing analysis, the
Court makes the following conclusions:
1. Plaintiff failed to effectuate original service of process upon the Office of the
Attorney General and at the OAG designated for service of process where venue is
location within Beaver County as pe
2. Plaintiff did not satisfy 37 Pa. Cos
jurisdiction;
3. Service of process must be made wit
Complaint as per Pa. R.C.P. No. 422;
4. Proper service has not been made a
Therefore, Defendants preliminary
Rule 1028(a)(1) is hereby sustained and
An Order consistent with the terms
this same date.
r 37 Pa. Code § 111;
He § 111.1 and the Court lacks in personam
thin thirty (30) days of the filing of the
nd the statute has run; and
objections in the nature of a demurrer per
Plaintiffs’ Complaint is dismissed.
of this Memorandum Opinion will be issued
IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY
PENNSYLVANIA
MASON R. HOLBROOK and
DIANE L. HOLBROOK, his wife, : CIVIL DIVISION — LAW
Plaintiffs, :
VS.
Case No.: 10906 of 2020
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
Defendant.
ORDER
AND NOW, this \ 5 day of |March, 2021, upon consideration of the
preliminary objections filed on behalf of Defendant PennDOT on January 5, 2021, along
with the briefs filed by the parties in support of, and in opposition to, said preliminary
objections, coupled with the arguments|of counsel before the Court conducted on
February 10, 2021, it is HEREBY ORDERED and DECREED that Defendant’s preliminary
objection is SUSTAINED.
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