C. Whiting v. PA DOT

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colin Whiting, :
Appellant :
:
v. : No. 957 C.D. 2022
: SUBMITTED: September 11, 2023
Pennsylvania Department :
of Transportation :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: October 18, 2023
Colin Whiting, Plaintiff, appeals from the dismissal of his lawsuit
against the Pennsylvania Department of Transportation (PennDOT) by the Court of
Common Pleas of Wayne County for lack of personal jurisdiction as a result of
Plaintiff’s failure to properly serve the writ of summons and complaint initiating the
case. We affirm.
The operative facts are as follows. Plaintiff was injured in an accident
claimed to have occurred on October 8, 2017. Plaintiff, in accordance with 42
Pa.C.S. § 5522(a), provided PennDOT and the Office of Attorney General (OAG)
with notice of his intent to commence a civil action through a letter sent by counsel
on January 5, 2018. Plaintiff commenced his action on October 4, 2019 by filing a
praecipe for a writ of summons in the trial court. Although the writ was issued that
day, it was not served upon PennDOT or OAG. Plaintiff filed a complaint on
October 26, 2020, more than a year after issuance of the writ of summons. The
complaint was also not properly served upon PennDOT or OAG. Rather, copies of
the complaint were sent “for service” by certified mail through the United States
Postal Service. (Reproduced R. “R.R.” at 36.)
PennDOT filed preliminary objections on November 25, 2020,
asserting that the trial court lacked jurisdiction over it because of Plaintiff’s failure
to properly serve the writ of summons and the complaint. Subsequently, on February
5, 2021, Plaintiff filed praecipes to reissue the writ of summons and reinstate the
complaint. By order dated March 1, 2021, the Honorable Janine Edwards, President
Judge, overruled PennDOT’s preliminary objections, explaining that “[o]n February
5, 2021, Plaintiff reissued the writ of summons and reinstated the Complaint against
[PennDOT].” (R.R. at 59.)
After completion of discovery, PennDOT filed a motion for summary
judgment. A second judge, the Honorable Matthew L. Meagher, granted
PennDOT’s motion on August 4, 2022, dismissing the action with prejudice because
the trial court lacked personal jurisdiction over PennDOT, explaining as follows:
The Court is persuaded by the case relied upon by
PennDOT, Gussom v Teagle, 247 A.3d 1046 (Pa. 2021),
to dismiss the instant action for lack of personal
jurisdiction. A complaint or 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. See
[Id. at] 1048 [citing Lamp v Heyman, 366 A.2d 882, 889
(Pa. 1976)]. A plaintiff is also required to make a good-
faith effort to effectuate notice upon a defendant of
commencement of the action. See id. [citing Farinacci v.
Beaver Cnty. Indus. Dev. Auth., 511 A.2d 757, 759
(Pa.1986)]. [Plaintiff] failed to effectuate proper service,
and did not attempt to effectuate proper service, upon
PennDOT and [OAG] from the issuance of the writ of
2
summons on October 4, 2019 until both parties were
properly served by sheriff in February 2021. [Plaintiff]
also failed to make a good-faith effort to notify PennDOT
of the commencement of the action.[1]
1
The Pennsylvania Rules of Civil Procedure allow a plaintiff to commence a civil action by
filing either a praecipe for a writ of summons or a complaint. Pa.R.Civ.P. 1007. The Rules
require a plaintiff to serve the defendant with original process within 30 days after the issuance of
a writ or the filing of a complaint. Pa.R.Civ.P. 401(a). If the plaintiff does not effectuate service
within that time period, he can praecipe for reissuance of the writ or reinstatement of the
complaint. Pa.R.Civ.P. 401(b)(1). So long as the plaintiff files his writ or complaint before the
expiration of the statute of limitations applicable to his cause of action, the original filing, as well
as any subsequent reissuances or reinstatements, tolls the statute of limitations.
With Lamp, our Supreme Court sought to curb abuse 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 Phila., 888 A.2d 664,
665 (Pa. 2005). Gussom summarized the rules of previous cases as follows:
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. Gussom held that “a trial court has the discretion to dismiss a
complaint when a plaintiff fails to offer proof that she diligently attempted to serve process on a
defendant in a timely manner and there is no evidence to indicate that the defendant had actual
notice of the action in the relevant time frame, regardless of whether the plaintiff acted or failed to
act intentionally.” Id. at 1048.
3
(R.R. at 82.) The instant appeal followed. The trial court directed Plaintiff to file a
concise statement of errors complained of on appeal in accordance with
Pennsylvania Rule of Appellate Procedure 1925(b). Plaintiff complied and the trial
court filed an opinion under Pennsylvania Rule of Appellate Procedure 1925(a),
stating in pertinent part as follows:
This Court relies upon its Order dated August 4, 2022 and
adopts and incorporates the entirety of said [o]rder.
Further, this Court is not precluded from granting
summary judgment following the denial of preliminary
objections on the same grounds. See Rosenfield v.
Pennsylvania Auto. Ins. Plan, 636 A.2d 1138, 1142 (Pa.
Super. 1994). As noted in the August 4, 2022 Order, this
Court granted Defendant’s Motion for Summary
Judgment . . . and dismissed the matter relying upon
Gussom v. Teagle, 247 A.3d 1046 (Pa. 2021), a case
decided on March 25, 2021[,] and subsequent to this
Court’s March 1, 2021 Order on preliminary objections.
(R.R. at 86.)
On appeal, Plaintiff raises the following issues:
[1] President Judge Janine Edwards’ March 1, 2021
finding and Order overruling [PennDOT’s] Preliminary
Objection, pre-Gussom, should be the controlling decision
in this matter as no new facts were uncovered during
discovery to warrant disturbing her ruling.
[2] In the alternative, if the Honorable Matthew Meagher's
August 4, 2022 Opinion and Order, and his subsequent
[Opinion] dated October 18, 2022, should be controlling,
it should be reversed and this case should be remanded for
further proceedings for failure of the Trial Court to apply
the Chevron[2] balancing test.
2
Chevron Oil. Co. v. Huson, 404 U.S. 97 (1971).
4
(Pl. Br. at 6.)
Plaintiff argues that the decision by President Judge Edwards should
control this case, because no new information was uncovered in the course of the
case. Plaintiff makes the argument as follows:
It is generally understood that a motion for summary
judgment is made based on additional information that is
uncovered throughout the course of the case. However, if
no new facts relating to the issue have been added to the
record, there is no reason to reach a different conclusion.
In that circumstance, the first [j]udge’s ruling at the
[p]reliminary [o]bjection stage of the case should stand.
[Pl. Br. 7 (emphasis original).] Curiously, Plaintiff provides no authority for this
proposition.3 Rather, immediately preceding this argument, Plaintiff cites
Rosenfield for the general proposition that “[o]rdinarily, a trial judge should not
overrule a decision made by another judge in the same court in the same case,”
generally known (but not referred to by Plaintiff) as the coordinate jurisdiction rule.
636 A.2d at 1142. Rosenfield immediately continued as follows: “[h]owever, this
rule is not intended to preclude granting summary judgment following the denial of
preliminary objections.” Id. It is clear that the coordinate jurisdiction rule does
not apply “where the motions differ in kind.” Goldey v. Trs. of Univ. of Pa., 675
A.2d 264, 267 (Pa. 1996). Here, the legal basis for the grant of summary judgment
was distinct from the basis upon which the preliminary objections was sought.
While Rosenfield states that the judge at the summary judgment stage in that case
had greater evidence for the grant of summary judgment, 636 A.2d at 1142, it is, as
then-Judge, now Justice Wecht observed in K.H. ex rel. H.S. v. Kumar, 122 A.3d
3It may also be noted that some events considered by the second trial judge in the issuance of
summary judgment, such as the February 2021 reissuance of the writ and reinstatement of the
complaint, occurred after the preliminary objections were filed.
5
1080 (Pa. Super 2015), “immaterial whether, in fact, the decisional record on
summary judgment before [a second judge] varied at all from what [a first judge]
had at his disposal in reviewing . . . preliminary objections,” id. at 1092. It is the
differing nature of the motions that suffices to preclude application of the coordinate
jurisdiction rule. Id.Plaintiff further argues that Gussom represented a change in the
controlling law and its retroactive application should be subject to the criteria set
forth by the United States Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97(1971).4 However, as pointed out by PennDOT, this argument was not raised in
Plaintiff’s Rule 1925(b) statement.5 “[I]n order to preserve their claims for appellate
review, [a]ppellants must comply whenever the trial court orders them to file a
[s]tatement of [m]atters [c]omplained of on [a]ppeal pursuant to [Rule] 1925. Any
4
In Chevron, the United States Supreme Court identified criteria for determining whether a
decision will be prospectively applied:
First, the decision to be applied nonretroactively must establish a
new principle of law, either by overruling clear past precedent on
which litigants may have relied, or by deciding an issue of first
impression whose resolution was not clearly foreshadowed.
Second, it has been stressed that “we must . . . weigh the merits and
demerits in each case by looking to the prior history of the rule in
question, its purpose and effect, and whether retrospective operation
will further or retard its operation.” Finally, we have weighed the
inequity imposed by retroactive application, for “[w]here a decision
. . . could produce substantial inequitable results if applied
retroactively, there is ample basis in our cases for avoiding the
‘injustice or hardship’ by a holding of nonretroactivity.”
Blackwell v. State Ethics Commission, 589 A.2d 1094, 1100 (Pa. 1991) (quoting Chevron, 404
U.S. at 106-07).
5
(See Pl. Concise Statement of Matters Complained of on Appeal, R.R. at 85.)
6
issues not raised in a [Rule] 1925(b) statement will be deemed waived.” Com. v.
Hill, 16 A.3d 484, 494 (Pa. 2011) [quoting Com. v. Lord, 719 A.2d 306, 309 (Pa.
1998)].
Further, were this argument not waived, it would still be unavailing; as
it pertains to this case, Gussom is not a new rule of law—it merely applied the rule
set forth in Lamp and subsequent cases requiring a plaintiff to make a good-faith
effort to diligently and timely serve process on a defendant.6 At all events, no
argument that such effort was made has been presented to this Court.
In light of the foregoing, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
6
See supra n.1.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colin Whiting, :
Appellant :
:
v. : No. 957 C.D. 2022
:
Pennsylvania Department :
of Transportation :
ORDER
AND NOW, this 18th day of October, 2023, the order of the Court of
Common Pleas of Wayne County is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita