Figueroa, P. v. Evans, C.

J-A31036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAMELA J. FIGUEROA AND MARIO J. : IN THE SUPERIOR COURT OF
FIGUEROA, HER HUSBAND : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 2041 EDA 2017
COURTNEY EVANS :
Appeal from the Order Entered June 2, 2017
In the Court of Common Pleas of Northampton County Civil Division at
No(s): C-0048-CV-2015-1694
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 26, 2018
Appellants Pamela J. Figueroa and Mario J. Figueroa, husband and wife,
appeal from the order granting summary judgment in favor of Appellee,
Courtney Evans, in this negligence case. Herein, Appellants contend the court
erred when it concluded the statute of limitations barred Appellants’ claims.
We affirm.
Appellants’ causes of action stem from an automobile accident that
occurred on or about February 28, 2013. On February 23, 2015, Appellants,
through counsel, commenced a lawsuit against Appellee by filing a Praecipe
for a Writ of Summons alleging that her negligent operation of her vehicle
caused Appellants to sustain personal injuries in the accident.
The docket indicates Appellants forwarded the summons to the
Northampton County Sheriff and paid the Sheriff’s service fee on February 27,
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* Former Justice specially assigned to the Superior Court.
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2015. The Sheriff, however, filed a Return of Service on March 9, 2015,
indicating that service was not accomplished because, evidently, Appellee had
moved without any indication as to a forwarding address.
Over one year passed without docket activity until, on March 30, 2016,
the court sua sponte scheduled and conducted a preliminary status
conference. By the Honorable Samuel P. Murray’s order of March 30, 2016,1
the court directed Appellants to file a petition to serve Appellee by publication
no later than June 24, 2016. The order further listed the case for restatus on
June 28, 2016. Order, 3/30/16 (C.R. #4). Appellants elected not to file a
petition to serve by publication by June 24, 2016, but on that same date,
counsel for Appellee filed her Entry of Appearance after Appellee apparently
received notice of the restatus hearing from the Northampton County
Courthouse.2
On June 28, the Honorable Michael J. Koury, Jr. conducted the restatus
hearing, in which counsel for both parties participated telephonically. By the
court’s order of June 28, 2016, the court indicated that pleadings remained
open, and it directed Appellants to accomplish service upon Appellee by
August 15, 2016. Furthermore, the court established a discovery timetable
ending on March 30, 2017, and scheduled a pretrial conference date of August
15, 2017. Order, 6/28/16 (C.R. #6).
____________________________________________
1 Judge Murray filed the order on May 5, 2016.
2There is no indication of record as to when the court notified Appellee or
when Appellants learned that the court had located her.
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On July 25, 2016, Appellants filed a praecipe to reissue the Writ of
Summons and forward to the Sheriff for service at Appellee’s address. C.R.
## 7, 8. Service by Sheriff was accomplished that same day, three years and
five months after the accident in question.
On September 12, 2016, Appellee filed a praecipe to the Prothonotary
to enter a rule upon Appellants to file a Complaint within 20 days of service of
the praecipe or suffer a judgment of non-pros. C.R. # 9. On September 29,
2016, Appellants filed their Complaint and served a copy upon Appellee. C.R.
# 11.
On October 13, 2016, Appellee filed an Answer and New Matter in which
she averred, inter alia, that Appellants’ delay in reissuing the Writ of Summons
nearly 18 months beyond the statute of limitations warranted judgment in her
favor. Defendant’s Answer and New Matter, filed 10/13/16. Appellants filed
their Answer on October 27, 2016, denying that the allegation of service
beyond the statute of limitations warranted an answer at this time, as “[s]trict
proof is demanded at the time of trial as to any affirmative defense raising the
Statute of Limitations.” Plaintiffs’ Answer to New Matter, filed 10/27/16.
The parties, thereafter, participated in discovery through early March,
2017. At the close of discovery, Appellee filed a “Motion to Dismiss/Motion
for Summary Judgment” requesting the court to dismiss the case with
prejudice. Specifically, Appellee averred:
8. The Statute of Limitations for [the present action] is two
years. 42 Pa.C.S.A. § 5524.
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9. [Appellee] was served a year and four months after the
expiration of the Statute of Limitations.[3]
10. The Writ of Summons was never reinstated until a year and
a half after it was initially served.
11. [Appellants] never attempted to serve the reinstated Writ
until a year and a half after its initial attempt.
12. By failing to reissue the Writ of Summons and taking no
action to serve the [Appellee] in the last year and a half,
[Appellants] did not timely and effectively prosecute this action.
…
15. [Appellants] have failed to act with due diligence in the filing
and prosecution of this action.
16. [Appellants] did not act in good-faith in that they made no
effort to file this action and serve the [Appellee] within the
applicable Statute of Limitations.
17. [Appellee] did not hide her whereabouts in that she received
notice of the status conference notice [from the Northampton
County Court].
Appellee’s Motion to Dismiss/Motion for Summary Judgment, filed 3/27/17 at
2.
Appellee filed a praecipe for argument on her motions, and the court
ordered that the parties submit briefs on the matter. On June 2, 2017, the
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3The Motion to Dismiss/Motion for Summary Judgment avers that “[t]he Writ
of Summons was reissued for the first time on July 25, 2016, and [Appellee]
was finally served on July 25, 2016.” Motion to Dismiss, filed 3/27/17, at 2.
There is no dispute as to either the July 25, 2016 date of service or the date
on which the statute of limitations expired, namely, February 28, 2015, two
years from the date of the alleged car accident. Therefore, Appellants served
Appellee nearly one year and five months after the statute of limitations
expired.
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Honorable F.P. Kimberly McFadden entered an Order granting summary
judgment.
Relying on Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122
(Pa.Super. 2007), the court found no indication in the record that Appellants
made a good-faith attempt to effectuate service over the nearly 18 months
that passed between the date of their initial attempt at service and the date
of eventual service. “To the contrary,” the court continued, “once the first
attempt to serve the Writ of Summons failed in March of 2015, [Appellants]
made no further attempts at service and the matter languished until the Court
sua sponte scheduled a status conference a year later, in March 2016.” Order
of Court, filed 6/2/17, at 1.
Appellants timely appealed and filed a Pa.R.A.P. 1925(b) statement.
They raise the following issues for our review:
I. DID THE LOWER COURT ERR IN APPLYING AS A
MATTER OF LAW THE SUPERIOR COURT DECISION IN
ENGLERT V. FASIO [SIC] MECHANICAL SERVICES,
INC., 932 A.2D 122 (PA.SUPER. 2007), AS SUCH CASE
IS IN CLEAR CONFLICT WITH THE PENNSYLVANIA
SUPREME COURT DECISION IN FARANASHI V.
BEAVER COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY, 510 PA. 589, 511 A.2D 757 (1986), BY
FAILING TO REQUIRE UNDER THE FARANASHI
OPINION EVIDENTIARY DETERMINATIONS AND
FINDINGS OF FACT TO DETERMINE WHETHER GOOD-
FAITH EFFORTS WERE MADE TO EFFECTUATE
NOTICE?
II. DID THE HONORABLE COURT BELOW ABUSE ITS
DISCRETION IN NOT ACCEPTING AS TRUE THE FACTS
PLED IN APPELLANT FIGUEROAS’ ANSWER TO
DISMISS TO THE MOTION FOR SUMMARY JUDGMENT
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WHEN THE DEFENDANT/APPELLEE RECEIVED THE
ACTUAL NOTICE OF A STATUS CONFERENCE, WAS
AWARE OF THE PROCEEDINGS THROUGH BOTH
COUNSEL AND THE INSURANCE CARRIER, AND
WHERE THE DEFENDANT’S WHEREABOUTS WERE
NEVER DISCLOSED TO THE PLAINTIFFS UNTIL AFTER
DEFENDANT/APPELLEE’S KNOWLEDGE OF THE SUIT?
III. DID THE HONORABLE COURT BELOW COMMIT AN
ERROR OF LAW AND/OR ABUSE OF DISCRETION IN
FAILING TO REALIZE THAT THE ORDER OF COURT
ENTERED BY THE HONORABLE SAMUEL P. MURRAY ON
MAY 5, 2016, MODIFIED BY THE HONORABLE
MICHAEL J. KOURY, JR., ON JULY 6, 2016, AT A
STATUS CONFERENCE PARTICIPATED IN BY ALL
COUNSEL, WHICH GRANTED PLAINTIFF, WHO HAD
FINALLY PROCURED AN ADDRESS IN PIKE COUNTY
ON THE DEFENDANT/APPELLEE TO BE SERVED BY
AUGUST 15, 2016, AN ORDER OF COURT COMPLIED
WITH BY THE [APPELLANTS] AND AS REFERENCED BY
PERSONAL SERVICE ON AUGUST 5, 2016 ON THE
DOCKET?
IV. DID THE HONORABLE COURT BELOW FAIL TO APPLY
AND/OR ENTER ANY LEGAL BASIS FOR PREJUDICE
SUFFERED BY THE DEFENDANT/APPELLEE, BELIEVED
TO BE A REQUIREMENT FOR DISMISSAL OF AN
ACTION PURSUANT TO McCREESH V. CITY OF
PHILADELPHIA, 585 PA. 211, 888 A.2D 664 (2005),
IN THAT THE LAW REQUIRES A FINDING OF AN
AFFECT [SIC] ON THE SUBSTANTIAL RIGHTS OF THE
DEFENDANT/APPELLEE IN TERMS OF PREJUDICE TO
THEIR CASE; SAID ISSUE BEING NOT ADDRESSED BY
THE COURT BELOW AND NOT EXISTING FACTUALLY
IN THE CASE?
Appellant’s brief at 8.
“Our scope of review of a trial court's order granting or denying
summary judgment is plenary[.]” Krapf v. St. Luke's Hosp., 4 A.3d 642,
649 (Pa.Super. 2010). We may not disturb the order of the trial court unless
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it committed an error of law or abused its discretion. Coleman v. Wyeth
Pharms., Inc., 6 A.3d 502, 509 (Pa.Super. 2010).
In evaluating the trial court's decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. ... Failure of a non-moving party to adduce
sufficient evidence on an issue essential to his case and on which
he bears the burden of proof establishes the entitlement of the
moving party to judgment as a matter of law. Lastly, we will
review the record in the light most favorable to the non-moving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Id. (citation omitted); see also Lineberger v. Wyeth, 894 A.2d 141, 146
(Pa.Super. 2006) (stating that “a record that supports summary judgment will
either (1) show the material facts are undisputed[;] or (2) contain insufficient
evidence of facts to make out a prima facie cause of action or defense and,
therefore, there is no issue to be submitted to the jury.”); Overly v. Kass,
554 A.2d 970, 972 (Pa.Super. 1989) (stating that a court ruling upon a motion
for summary judgment must ignore controverted facts contained in the
pleadings and restrict its review to material filed in support of and in opposition
to a motion for summary judgment and to those allegations in pleadings that
are uncontroverted).
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Because Appellant’s first three issues coalesce to assert the court
granted summary judgment in contravention of our decisional law and against
the weight of the evidentiary record, we address the issues together.
The statute of limitations for personal injury actions in Pennsylvania is
two years. See 42 Pa.C.S.A. § 5524. According to Appellants, Appellee’s
negligence caused their injuries on February 28, 2013, and they filed a Writ
of Summons on February 23, 2015, five days prior to the expiration of the
statute of limitations. Their attempt to serve Appellee at that time failed,
however, as she had moved. Appellant did not attempt service again until
one year and five months later.
It is well settled in this Commonwealth pursuant to Lamp v.
Heyman, 469 Pa. 465, 366 A.2d 882 (1976), and Farinacci v.
Beaver County Industrial Development Authority, 510 Pa.
589, 511 A.2d 757 (1986), that service of original process
completes the progression of events by which an action is
commenced. Once an action is commenced by writ of summons
or complaint the statute of limitations is tolled only if the plaintiff
then makes a good-faith effort to effectuate service. Moses v.
T.N.T. Red Star Express, 725 A.2d 792 (Pa.Super.1999),
appeal denied, 559 Pa. 692, 739 A.2d 1058 (1999). “What
constitutes a ‘good-faith’ effort to serve legal process is a matter
to be assessed on a case by case basis.” Id. at 796; Devine v.
Hutt, 863 A.2d 1160, 1168 (Pa.Super.2004) (citations omitted).
“[W]here noncompliance with Lamp is alleged, the court must
determine in its sound discretion whether a good-faith effort to
effectuate notice was made.” Farinacci at 594, 511 A.2d at 759.
In making such a determination, we have explained:
It is not necessary [that] the plaintiff's conduct be
such that it constitutes some bad faith act or overt
attempt to delay before the rule of Lamp will apply.
Simple neglect and mistake to fulfill the responsibility
to see that requirements for service are carried out
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may be sufficient to bring the rule in Lamp to bear.
Thus, conduct that is unintentional that works to delay
the defendant's notice of the action may constitute a
lack of good-faith on the part of the plaintiff.
Devine, supra at 1168 (quoting Rosenberg v. Nicholson, 408
Pa.Super. 502, 597 A.2d 145, 148 (1991), appeal denied, 530
Pa. 633, 606 A.2d 903 (1992)). “[A]lthough 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 were reasonable.” Bigansky v.
Thomas Jefferson University Hospital, 442 Pa.Super. 69, 658
A.2d 423, 433 (1995), appeal denied, 542 Pa. 655, 668 A.2d
1119 (1995).
Englert, 932 A.2d at 124-25.
Here, the trial court declared that it applied the “good-faith effort” test
announced in Englert and determined that Appellants’ inaction on the docket
for over 13 months until the court sua sponte called a status hearing, along
with their subsequent failure to serve Appellee for another four months,
reflected the absence of a good-faith effort to effectuate service required by
our decisional law. In response, Appellants contend that the court abused its
discretion by failing to make evidentiary determinations and findings of fact
to determine whether Appellants made good-faith efforts as required by
Faranashi. See Appellant’s brief, at 16-23.
In Faranashi, the Pennsylvania Supreme Court explained that
evidentiary determinations must inform a trial court’s exercise of sound
discretion as to whether a plaintiff made a good-faith effort to effectuate
notice. Id. at 511 A.2d at 759. Appellants appear to maintain the court could
not have made the proper evidentiary determinations when it is apparent from
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the record that Appellee had actual notice of the action by June 24, 2016,
when counsel for Appellee entered her appearance, which was one month
before Appellants reissued the Writ of Summons.
Our review of the record, however, establishes that the court centered
its order granting summary judgment mainly on Appellants’ election to remain
idle for over 13 months after learning service failed because Appellant had
moved from her residence. Over this evidentiary record, there is no dispute
between the parties that Appellants made no attempt to locate Appellee for
more than a year after the filing of their Writ and the expiration of the statute
of limitations. While Appellants did notify Appellee’s automobile insurance
carrier of their suit in early March of 2015, just weeks after filing its initial
Writ, there is nothing in the record showing that Appellants subsequently
notified Appellee’s insurer of their inability to locate Appellee. Also of
probative value in assessing Appellants’ good-faith effort was the
Northampton County Prothonotary’s ability to locate Appellee’s current
address and notify her of the June 28, 2016 restatus hearing, which supported
Appellee’s claim that her whereabouts had been a matter of public
information.
Without a dispute of material fact concerning Appellants’ lack of effort
to effectuate service for thirteen months after the limitations period had
expired, the trial court appropriately considered the present matter ripe for
summary judgment. In this regard, the court properly applied the standard
of review placing the burden of proof upon Appellants, as plaintiffs, to
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demonstrate that their efforts to effectuate service were reasonable. Englert,
supra. In so doing, the court looked to the evidentiary record, in accordance
with Faranashi, and determined that Appellants failed to act reasonably.
We, therefore, discern no abuse of discretion with the court’s reliance
on Englert to assess the undisputed evidence before it. In Englert, the
plaintiffs provided the sheriff with the wrong address of the defendants. A
return of service indicated the defendants were not found, but the sheriff
provided the defendants’ new address. This document was also accessible on
the Prothonotary’s website.
Plaintiff’s counsel, however, had moved his office and did not receive
the notice from the sheriff. Despite knowing both that he had not received
notice and that his new law office was experiencing unreliable mail service,
counsel for plaintiffs allowed seven months to pass without action. Only then,
when the defendant’s insurer warned plaintiffs of the impending end of the
statute of limitations period and counsel received the return of service, did
plaintiffs file a praecipe to reissue the writ of summons. This was six days
after the expiration of the limitations period.
After pleadings were closed, defendants filed for summary judgment
asserting that plaintiffs’ claims were barred by the statute of limitations. The
trial court agreed and granted summary judgment in favor of defendants. On
appeal, we affirmed, holding that the trial court had adhered to precedent
requiring courts to inquire, on a case-by-case basis, whether a plaintiff acted
in good-faith. Dispositive was the fact that plaintiffs:
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took no action whatsoever once the writ was issued to ascertain
whether service was properly made and relied instead on counsel’s
customary practice of waiting for word from the Sheriff’s office, no
matter how long that might take and in spite of the difficulties he
had experienced receiving his mail in a timely manner. [Plaintiffs’]
conduct clearly amounted to neglect … to fulfill the responsibility
to see that requirements for service were carried out. In other
words, [Plaintiffs’] inaction demonstrated an intent to stall the
judicial machinery which was put into motion by the filing of the
initial writ and simply cannot be excused. McCreesh at 227, 888
A.2d at 674.
Furthermore, and unlike in McCreesh, Plaintiffs did not provide
defendants with actual notice of the commencement of the action
within the applicable statute of limitations. . . . In short, our
Supreme Court’s decision in McCreesh to adopt a ‘more flexible
approach’ to prevent ‘dismissing claims based on technical
failings’ simply does not provide authority for granting relief to
[Plaintiffs].
Englert, 932 A.2d at 127 (internal citation and quotation marks omitted).
We find Englert directly on point to the case sub judice. While neither
plaintiffs in Englert nor Appellants in the present matter committed bad faith
acts or overt attempts to delay process, their respective neglectful failures to
carry out clearly defined responsibilities to effectuate service constituted a
lack of good-faith. Accordingly, we discern no abuse of discretion in the court’s
exercise of discretion in granting summary judgment on this basis.
In Appellant’s remaining claim, he argues that summary judgment was
inappropriate where the court only made a finding of lack of good-faith effort
without also finding that Appellants’ delay in effectuating service prejudiced
Appellee. We disagree.
“The Court in McCreesh stated that a plaintiff’s claims could be
dismissed only where ‘plaintiffs have demonstrated an intent to stall the
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judicial machinery or where plaintiff’s failure to comply with the Rules of Civil
Procedure has prejudiced defendant.’” Englert, 932 A.2d at 127 n.5 (quoting
McCreesh, 888 A.2d at 674 (emphasis added)). As the Court stated these
two grounds in the disjunctive, only one ground is required to support
dismissal.
Here, as we have upheld the grant of summary judgment on the basis
of Appellants’ lack of good-faith effort, we need not examine the question of
whether Appellee was prejudiced by service occurring nearly eighteen months
after the expiration of the limitations period. But see Englert, 932 A.2d at
127 (concluding, in the alternative, that defendants/appellees were prejudiced
because they were not provided actual notice of the action until after the
statute of limitations had expired); see also McCreesh, 888 A.2d at 671
(stating that the purpose of the statute of limitations is to expedite litigation
and discourage the presentation of stale claims that would prejudice the
defense of such claims).
For the foregoing reasons, we affirm the Order entered below.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/18
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