Johnson, T. v. Austin, A.

J-A02027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TERRENCE JOHNSON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ANTHONY A. AUSTIN
No. 1122 EDA 2016
Appeal from the Order March 30, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1506-01582
BEFORE: OTT, J., SOLANO, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED APRIL 19, 2017
Terrence Johnson appeals from the order of March 30, 2016, granting
Anthony A. Austin’s motion for judgment on the pleadings and dismissing
the complaint. We affirm.
We adopt the following statement of facts from the trial court’s
opinion, which in turn is supported by the record. See Trial Court Opinion
(TCO), 6/27/16, at 1-2. Appellant instituted this action on June 11, 2015,
averring that Appellee was negligent in causing a motor vehicle accident on
July 17, 2013. Accordingly, the statute of limitations ran on July 17, 2015.
Appellant made his first attempt at service on June 13, 2015. Per the
affidavit, service was attempted at Appellee’s last known address, 237 W.
Zeralda Street, Philadelphia, Pennsylvania, 19144. Appellee’s father
answered the door and stated that Appellee no longer lived at that address,
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and he had no information about Appellee’s current address. On July 9,
2015, Appellant hired an investigator, Confidential Investigative Services,
Inc. (“CIS”), to locate Appellee. The record is unclear as to the date CIS
began its work. The engagement letter did not indicate that the statute of
limitations was a concern or that the investigator needed to begin work
immediately as a result. The next contact between Appellant and the
investigator was three months later.
On October 29, 2015, CIS responded to Appellant’s inquiry with an
investigative report suggesting that in August, it had made a request to the
United States Postal Service regarding Appellee’s forwarding address.
However, the Postal Service had not responded. CIS had also performed
database searches in an attempt to locate Appellee.
On November 2, 2015, Appellant’s counsel requested Appellee’s
address from the Pennsylvania Department of Transportation. On November
5, 2015, CIS produced a supplemental report indicating that the Postal
Service still listed Appellee’s address at 237 W. Zeralda Street. Appellant
filed a motion for alternative service pursuant to Pa.R.C.P. 430, which the
trial court granted.
On December 16, 2015, Appellant filed an affidavit of service averring
that Appellee had been served by posting the premises and first class
regular mail on December 9, 2015.
Appellee filed an answer and new matter to the complaint, and
Appellant filed a reply. Appellee then filed a motion for judgment on the
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pleadings, arguing that he was not timely served with the complaint per
Lamp v. Heyman, 366 A.2d 882 (1976), and that Appellant had not made a
good faith effort at service. Appellant filed an answer in opposition. The
trial court granted the motion and entered judgment in favor of Appellee.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court issued a responsive opinion.
On appeal, Appellant presents the following questions for our review:
1. Whether the lower court committed error of law when it
granted Appellee’s motion for judgment on the pleadings,
thereby depriving Appellant of his day in court, where Appellant
and his counsel acted reasonably at all times based upon
information available and in a good faith effort to locate
Appellee, and at no time acted to stall the judicial process?
2. Whether the lower court committed error of law when it
granted Appellee’s motion for judgment on the pleadings where
no prejudice resulted to Appellee by the delay in making service
that occurred through no fault of Appellant and despite counsel’s
diligent effort?
Appellant’s Brief at 4.
In reviewing a motion for judgment on the pleadings, we apply the
following standard and scope of review:
As our Supreme Court has explained, appellate review of a trial
court's decision to grant or deny judgment on the pleadings is
limited to determining whether the trial court committed an error
of law or whether there were facts presented which warrant a
jury trial. In conducting this review, we look only to the
pleadings and any documents properly attached thereto.
Judgment on the pleadings is proper only where the pleadings
evidence that there are no material facts in dispute such that a
trial by jury would be unnecessary.
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In passing on a challenge to the sustaining of a motion for
judgment on the pleadings, our standard of review is limited.
We must accept as true all well pleaded statements of fact of the
party against whom the motion is granted and consider against
him only those facts that he specifically admits.
John T. Gallaher Timber Transfer v. Hamilton, 932 A.2d 963, 967 (Pa.
Super. 2007) (quotation and citation omitted).
We note, at the outset, that Appellant’s brief does not comply with the
Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2119(a)-(c). His
argument section is not divided into parts for each question presented, nor
does it have at the head of each part the particular point treated therein.
Id. Further, Appellant’s argument section does not reference the record
when discussing the pleadings or evidence. Id. However, as we may
discern Appellant’s argument nevertheless, we decline to find waiver.
First, Appellant argues that the trial court erred in granting Appellee’s
motion for judgment on the pleadings because he timely filed his complaint
within the applicable statute of limitations and “continuously” attempted to
locate Appellee to effectuate service. See Appellant’s Brief at 8. Appellant
avers that his search was fruitless because of false and misleading
information provided by Appellee’s father. Id. Appellant contends that he
did not attempt to “stall the judicial machinery” and that, therefore, his
complaint should not be dismissed. Id. at 10-12 (citing in support
McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005)).
The Rules of Civil Procedure provide that original process shall be
served within the Commonwealth within thirty days after the issuance of the
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writ or the filing of the complaint. See Pa.R.C.P. 401(a). Further, the rule
provides procedures to extend that period of time if service may not be
made. Id. at (b)(1)-(5). When considering a case where service is delayed
beyond the statute of limitations, our courts have read a “good faith”
requirement in Pa.R.C.P. 401, which governs the service of original process.
See Lamp v. Heyman, 366 A.2d 882, 889 (Pa. 1976) (holding 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.”) Our Supreme Court has further
held that
Lamp requires of a plaintiff a good-faith effort to effectuate
notice of commencement of the action. Although this good-faith
requirement is not apparent from a reading of the rule itself, we
interpret the rule mindful of the context in which it was
announced. The purpose for the rule, as stated in Lamp, is to
avoid the situation in which a plaintiff can bring an action, but by
not making a good-faith effort to notify a defendant, retain
exclusive control over it for a period in excess of that permitted
by the statute of limitations.
Farinacci v. Beaver County Industrial Development Authority, 511
A.2d 757, 759 (Pa. 1986) (internal quotations omitted).
What 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, 796 (Pa. Super. 1999). The determination of a good faith
effort lies within the discretion of the trial court. See McCreesh, 888 A.2d
at 672. Simple neglect and mistake, or conduct that is unintentional that
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works to delay the defendant’s notice of the action, may constitute a lack of
good faith on the part of the plaintiff. See Englert v. Fazio Mechanical
Services, 932 A.2d 122, 124-125 (Pa. Super. 2007). It is unnecessary for
the plaintiff’s conduct to constitute bad faith or an overt attempt to delay
before Lamp will apply. Id. “Lack of knowledge, mistake or
misunderstanding does not toll the running of the statute of limitations.”
Booher v. Olczak, 797 A.2d 342, 345 (Pa. Super. 2002). Further, it is the
plaintiff’s burden to demonstrate that his efforts at service were reasonable.
See Bigansky v. Thomas Jefferson Univ. Hosp., 658 A.2d 423, 433 (Pa.
Super. 1995).
Moreover, our Supreme Court has embraced a “flexible” approach to
the good faith determination, “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 (citing favorably Leidich v. Franklin, 575 A.2d 914 (Pa.
Super. 1990)) (emphasis added). Thus, where a defendant has actual
notice of an action, dismissal for lack of service will be appropriate “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.” See McCreesh, 888 A.2d at 674.
As a first note, Appellant’s reliance on McCreesh is misplaced. Here,
there is no evidence in the record or any suggestion in the pleadings that
Appellee had actual notice of the commencement of the proceedings prior to
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the December 15, 2016 service of the complaint. Accordingly, we focus our
analysis on whether Appellant conducted a good-faith effort to serve
Appellee within the appropriate time period. See Farinacci, 511 A.2d at
759.
Here, Appellant instituted the action approximately one month prior to
the date the statute of limitations ran. Although he attempted to make
service two days after the filing of the complaint, he was unsuccessful.
Further, while Appellant engaged an investigator, CIS, to locate Appellee
approximately a week prior to the statute of limitations’ run date, he failed
to inform the investigator of the run date, nor did he even contact CIS again
until three months later, well after the statute had run. Several days after
that, Appellant made a request for information with the Pennsylvania of
Department of Transportation.
On November 5, 2015, CIS forwarded to Appellant a report that 237
W. Zeralda Street remained a good address for Appellee. Still, Appellant did
not immediately file a motion for alternative service, but instead waited
several weeks before filing his motion. Thus, service was not effectuated
until December 16, 2015, nearly five months after the statute had run.
Based on these facts, Appellant did not pursue service upon Appellee
in good faith. See Farinacci, 511 A.2d at 759. Accordingly, we discern no
abuse of the trial court’s discretion, which properly granted Appellee’s
motion for judgment on the pleadings. See McCreesh, 888 A.2d at 672;
John T. Gallaher Timber Transfer, 932 A.2d at 967.
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Next, Appellant argues that the lower court erred in granting
Appellee’s motion for judgment on the pleadings because Appellee did not
suffer prejudice as a result of the untimely notice. See Appellant’s Brief at
13. Appellant relies upon McCreesh to support this statement. However,
McCreesh is inapposite, as actual notice did not occur. Accordingly, we
need not examine the prejudice prong of the analysis. See McCreesh, 888
A.2d at 671-74; see also Englert, 932 A.2d at 124-125 (not reaching a
prejudice analysis where no actual notice occurred).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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