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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MEGAN PEARCE AND DAVID PEARCE, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
DENETTE JONES,
Appellee No. 986 WDA 2014
Appeal from the Order Entered May 23, 2014
In the Court of Common Pleas of Jefferson County
Civil Division at No(s): 427-2013-CD
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.
DISSENTING MEMORANDUM BY OLSON, J. FILED MARCH 30, 2015
As I believe that the trial court abused its discretion in finding that the
Appellants, Megan and David Pearce, did not act in good faith in providing
timely service of their complaint on Appellee, Denette Jones, I must
respectfully dissent.
In Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), our Supreme Court
held that a writ of summons, or a complaint, remains effective to commence
an action (and thereby tolls the statute of limitations) “if the plaintiff ...
refrains from a course of conduct which serves to stall in its tracks the legal
machinery he has just set in motion.” Id. at 889. Thereafter, our High
Court held in Farinacci v. Blair County Ind. Dev. Auth., 511 A.2d 757,
759 (Pa. 1986) that “Lamp requires of plaintiffs a good-faith effort to
effectuate notice of commencement of the action.” In McCreesh v. City of
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Philadelphia, 888 A.2d 664 (Pa. 2005), the Supreme Court clarified what
constitutes a good faith effort by a plaintiff to effectuate notice to a
defendant of the commencement of an action:
Neither our cases nor our rules contemplate punishing a
plaintiff for technical missteps where he has satisfied the
purpose of the statute of limitations by supplying a
defendant with actual notice. Therefore, we embrace the
logic of the Leidich [v. Franklin, 575 A.2d 914 (Pa.
Super. 1990), appeal denied, 584 A.2d 319 (Pa. 1990)]
line of cases, which, applying Lamp, would 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.
Id. at 674 (footnote omitted). Based upon my review of the certified record,
I must conclude that there is insufficient evidence to find that the Pearces
demonstrated an intent to stall the judicial machinery, or that Jones was
prejudiced by having the complaint served upon her eight months after it
was originally filed. Thus, I believe that it was error for the trial court to
grant summary judgment for Jones and dismiss the Pearces’ complaint.
In order to assess whether the Pearces acted in good faith, as required
by McCreesh, it is important to understand the chronology of events in this
case. The parties were involved in an automobile accident on May 30, 2011.
Complaint at ¶ 5. On June 8, 2012, a letter from Jones’ insurance adjuster
was sent to Joshua Janis, Esquire, counsel for the Pearces, acknowledging
receipt of the letter of representation and asking for an update on the
Pearces’ injuries and treatment. Plaintiffs’ Response to Motion for Summary
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Judgment, Exhibit D. On May 28, 2013, the Pearces’ complaint was filed.
Approximately three weeks later, Jones’ insurance adjuster asked that a
copy of the complaint be faxed to her. Id., Exhibit E. On August 22, 2013,
the Pearces’ counsel emailed a copy of the complaint to the adjuster. Id.,
Exhibit F. On September 11, 2013, counsel for the Pearces sent a praecipe
to reinstate complaint to the Jefferson County Prothonotary, along with a
copy of the complaint and a check for the sheriff’s fee for service. Id.,
Exhibit B. The cover letter asked that the complaint be reinstated and that it
be forwarded to the Jefferson County sheriff for service upon Jones.
Apparently, Pearces’ counsel failed to send a check for the fee associated
with reinstating the complaint; thus, on or about September 27, 2013, a
memo was sent from the Jefferson County prothonotary to counsel for the
Pearces advising him that there was an $8.00 fee for the reinstatement. Id.
On November 8, 2013, a second praecipe to reinstate the complaint (dated
November 6, 2013) was filed. Id., Exhibit A. On November 12, 2013, the
first request to serve the complaint on Jones was received by the Jefferson
County sheriff’s office. Defendant’s Motion for Summary Judgment, Exhibit
B. On December 4, 2013, return of service was filed by the sheriff stating
that Jones did not live at the address provided.1 Return of Service, 12/4/13.
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1
The complaint and the request for service directed to the sheriff stated that
Jones lived at 920 East Main Street, Reynoldsville, PA. However, Jones’
(Footnote Continued Next Page)
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On January 24, 2014, Mr. Janis withdrew as counsel for the Pearces and Lee
Ciccarelli, Esquire entered his appearance. Praecipe to Withdraw
Appearance, 1/24/14. On that same date, a third praecipe to reinstate
complaint was filed. On January 27, 2014, one day shy of eight months
after the original complaint was filed, Jones was served with the complaint.
Return of Service, 1/28/14.
In assessing this chronology, the trial court and the learned majority
focus solely on the facts that the Pearces took no action to serve Jones with
the complaint after it was initially filed, and that Jones had no notice of the
complaint until a copy was emailed to Jones’ insurance adjuster on August
22, 2013, three months after the complaint was filed. Based on these facts
alone, the trial court and the majority conclude that the Pearces did not
make a good faith effort to serve Jones in a timely manner. I believe that
this analysis is inconsistent with the flexible approach adopted in McCreesh
because it expressly permits dismissal of an action under the statute of
limitations where there is no demonstration that the plaintiffs intended to
forestall the judicial machinery they set in motion and there is no showing
that any failure to comply with the procedural rules prejudiced the
defendant.
_______________________
(Footnote Continued)
correct address (at which she was eventually served) was 928 East Main
Street.
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The record in this case is clear that the Pearces did not ask the sheriff
to serve the complaint on Jones until mid-November, 2013. However, I do
not believe that that fact alone is sufficient to establish a lack of good faith.
Instead, the totality of the circumstances shows that there was no intent on
the part of the Pearces to stall the litigation or prevent Jones from getting
notice of the action. First, counsel for the Pearces had been in contact with
Jones’ insurance adjuster a year before the complaint was filed. This
communication included a letter from Jones’ insurance adjuster dated June
8, 2012. The majority asserts that this letter merely acknowledged the
adjuster’s awareness that counsel had been retained. The letter, however,
was far more revealing. In it, Jones’ adjuster requested an update on the
Pearces’ injuries and treatment status. Moreover, the adjuster knew within
a few weeks of the filing of the Pearces’ complaint that an action had been
commenced, and a copy of the complaint was provided to the adjuster in
August, 2013. In reviewing these facts in a light most favorable to the
Pearces, as we must do in considering a motion for summary judgment2,
there is evidence to suggest that there were ongoing communications
between the Pearces’ counsel and Jones’ insurance adjuster about the
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2
Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (in deciding a
motion for summary judgment, the court must view the record in a 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).
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Pearces’ claims.3 Jones argues that notice on the part of the insurance
adjuster is no substitute for notice to the defendant. Under the
circumstances presented in this case, I disagree and would note that this
Court has previously observed that “we do not read Lamp, and the cases
interpreting and applying it, to espouse a mechanical approach to the ‘good
faith’ effort rule such that it allows for no exceptions in the face of an
explanation and/or conduct which evidences an unintended deviation from
the ‘notice’ requirement.” Leidich, 575 A.2d at 918.
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3
In their response to the motion for summary judgment, the Pearces stated
that their original lawyer, Mr. Janis, withdrew his appearance and severed
his employment relationship with Ciccarelli Law Offices. The Pearces’ new
counsel stated that he “believes and therefore avers that specific
conversations took place between Mr. Janis and [the insurance adjuster]
regarding the [c]omplaint against her insured. Given [Jones’] request to
dismiss [the Pearces’] claims in their entirety, with prejudice, [the Pearces]
respectfully request [the trial c]ourt grant a brief discovery period so that
[the Pearces] may subpoena [the insurance adjuster’s] claim file and secure
her deposition so the record may be supplemented.” Plaintiffs’ Response to
Motion for Summary Judgment, p. 3, n. 1. This request was not addressed
by the trial court. I believe that it was error to grant summary judgment
and dismiss the complaint with prejudice when a brief period of discovery
could have uncovered additional genuine issues of material fact; especially in
light of Jones’ self-serving affidavit attached to her motion for summary
judgment in which she states that she had no notice that a lawsuit was
commenced until she received the complaint from the sheriff on January 24,
2014. Motion for Summary Judgment, Exhibit C. The insurance adjuster’s
claim file would be relevant to the issues of whether Jones had, in fact,
received notice of the lawsuit before service of the complaint, and whether
the parties were attempting to resolve the case without incurring costs
associated with on-going litigation. Such evidence would provide additional
support that there was no intent to stall the litigation or no prejudice to
Jones.
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Moreover, counsel for the Pearces intended to have the reinstated
complaint served upon Jones in mid-September, 2013 (three weeks after a
copy of the complaint was sent to Jones’ insurance adjuster) but, due to a
failure to transmit the $8.00 filing fee, the request was delayed. Once the
fee was transmitted, counsel for the Pearces again attempted to have the
sheriff serve Jones with the complaint, but the address for Jones was
incorrect. I do not believe that the Pearces should be penalized by having
their claims dismissed because their counsel erred, especially when there is
no evidence that the delay in service prejudiced Jones.
As clearly stated by our High Court in McCreesh, a trial court should
dismiss only those claims where the plaintiffs have either, 1) demonstrated
their intent to stall the judicial machinery; or 2) failed to comply with the
Rules of Civil Procedure and, thereby, prejudiced the defendant. Nothing in
the record establishes either of these requirements as a matter of law.
Accordingly, I would vacate the trial court’s order granting summary
judgment and reinstate the Pearces’ complaint.
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