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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LOU ANN PARSONS, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ROSE VALLEY PARTNERSHIP, INC., THE :
ARC OF LEHIGH & NORTHAMPTON :
COUNTIES, a/k/a ARC OF LEHIGH & :
NORTHAMPTON COUNTIES, RUSTY :
SMITH EXCAVATING & PAVING, INC., :
:
Appellees : No. 3157 EDA 2014
Appeal from the Order entered on October 3, 2014
in the Court of Common Pleas of Lehigh County,
Civil Division, No. 2013-C-1579
BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 12, 2015
Lou Ann Parsons (“Parsons”) appeals from the trial court’s Order
sustaining the Amended Preliminary Objections of Rose Valley Partnership,
Inc. (“Rose Valley”), the Supplemental Preliminary Objections of Rusty Smith
Excavating & Paving, Inc. (“Rusty Smith”), and dismissing the Preliminary
Objections of The ARC of Lehigh & Northampton Counties, a/k/a ARC of
Lehigh & Northampton Counties (“ARC”), as moot. In its Order, the trial
court also struck Parsons’s Writ of Summons and dismissed her Complaint.
We affirm.
The trial court set forth the relevant underlying facts as follows:
In May of 2011, [Rose Valley] was the owner and lessor of a
building located in Lehigh County at 2298 Avenue A, Allentown,
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Pennsylvania. [ARC] was an entity registered to do business in
Pennsylvania at that location. [Rusty Smith] was an excavating
and paving company [that] was engaged in the maintenance and
management of the property located at the address.
On or about May 6, 2011, [Parsons] was walking on the parking
lot in the rear of the mentioned property. [Parsons] claimed that
the paved parking lot was several inches higher than an unpaved
area that contained no warnings; she fell and had resulting
injuries. [Parsons] argues that the unlevel parking lot was in a
dangerous and unsafe condition because it was carelessly and
negligently permitted to exist beyond the time required for its
discovery.
… [Parsons] commenced [an] action by filing a Praecipe for Writ
of Summons on May 3, 2013, three days before the running of
the statute of limitation.[1] Thereafter, a Praecipe to Reissue the
Writ was filed on May 17, 2013; June 17, 2013; July 17, 2013;
August 16, 2013; September 16, 2013; October 16, 2013;
November 15, 2013; December 16, 2013; January 15, 2014;
February 14, 2014; and March 18, 2014. The Complaint was
finally filed on March 31, 2014. … [N]o attempt to serve [Rose
Valley, Rusty Smith, and ARC (collectively “the Defendants”)]
was made [until April 2014, following the filing of the
Complaint]. [Parsons] did not deliver the Writ to the sheriff for
service and explained that the delay or lack of service upon the
Defendants was because counsel needed more time to prepare
the case. …
Although there was no direct contact with [the] Defendants,
[Parsons] contacted [the] Defendants’ liability carriers on or
about January 28, 2014. [Parsons] … awaited response from the
insurance carriers until February 2014[,] and then proceeded to
file the Complaint.
Trial Court Opinion, 10/3/14, at 3-4 (footnotes and citations omitted,
footnote added).
1
See 42 Pa.C.S.A. § 5524(7) (stating that “[a]ny other action or proceeding
to recover damages for injury to person or property which is founded on
negligent, intentional, or otherwise tortious conduct or any other action or
proceeding sounding in trespass, including deceit or fraud, …” must be
commenced within two years).
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On April 16, 2014, Parsons filed a Praecipe to Reinstate a Complaint.
In response, the Defendants each filed Preliminary Objections.
Subsequently, Rose Valley filed Amended Preliminary Objections and Rusty
Smith filed Supplemental Preliminary Objections. The Defendants sought to
dismiss Parsons’s claims for her failure to make a reasonable effort to
effectuate service upon the Defendants and place them on notice of the suit.
Following a hearing, the trial court sustained the Amended Preliminary
Objections of Rose Valley and the Supplemental Preliminary Objections of
Rusty Smith, dismissed as moot ARC’s Preliminary Objections, and ordered
Parsons’s Writ of Summons stricken and the Complaint dismissed.
Parsons filed a timely Notice of Appeal and a court-ordered
Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.
On appeal, Parsons raises the following questions for our review:
1. Did the trial court [err] in requiring [Parsons] to serve a
Writ of Summons, within 30 days of filing, on [] Rusty
Smith[,] who had moved and left no forwarding address?
2. Did the trial court [err] in placing the burden of proof on
[Parsons] to show that [the Defendants] suffered harm from
the delay in service?
3. Did the trial court [err] in not considering the evidence
presented at the McCreesh v. City of Philadelphia, [888
A.2d 664 (Pa. 2005)] hearing?
4. Did the trial court [err] in assuming a fact not in evidence
when it said the scene of the accident had changed?
5. Did the trial court [err] when it scheduled the McCreesh
hearing to take place within seven days[,] denying
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[Parsons] an opportunity to conduct discovery and
subpoena witnesses?
6. Did the trial court [err] when it allowed [the Defendants] to
be absent from the McCreesh hearing?
7. Did the trial court [err] when it demanded additional
argument on the Preliminary Objections at the McCreesh
hearing[,] without giving [Parsons] notice[,] and allowed
the [Defendants] to discuss uncited law that was not
contained in the briefs?
8. Did the trial court [err] when it allowed [ARC] to amend its
brief months after argument[,] without requesting
permission from the court?
9. Did the trial court [err] when it ended its normal practices
of dismissing Lamp v. Heyman, [366 A.2d 882 (Pa. 1976)]
Preliminary Objections without argument or hearing?
10. Did the trial court [err] when it improperly struck
[Parsons’s] Writ of Summons and dismissed [Parsons’s]
Complaint using the Lamp test of service rather than the
McCreesh test of notice and harm?
11. Did the trial court [err] when it improperly struck
[Parsons’s] Writ of Summons and dismissed [Parsons’s]
Complaint without ruling on the Preliminary Objections of
[ARC]?
12. Did the trial court [err] when it considered the Preliminary
Objections of [] Rusty Smith and [ARC] that were untimely?
13. Did the trial court [err] when it placed burdens on [Parsons]
to take actions prior to the filing of the Writ of Summons?
14. Did the trial court [err] when it did not consider the public
interest of encouraging the settlement of such cases?
15. Did the trial court [err] when [it] failed to [e]nlarge the
[t]ime [p]eriod [i]nitially [s]pecified or [p]ermit an
[a]mended or [s]upplemental [s]tatement to be filed
because the transcript in this matter is not prepared[, and
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Parsons] paid the Court Reporter the required fee when the
Notice of Appeal was filed?
Brief for Appellant at 2-5.
We review of a challenge to a trial court’s grant of preliminary
objections under the following standard:
[O]ur standard of review of an order of the trial court overruling
or granting preliminary objections is to determine whether the
trial court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases
in which it is clear and free from doubt that the pleader will be
unable to prove facts legally sufficient to establish the right to
relief. If any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the
preliminary objections.
Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation
omitted).
Preliminarily, we note that in her brief, Parsons has set forth single
paragraph arguments relating to claims four, five, six, eleven, thirteen,
fourteen, and fifteen, that are not fully developed and that lack citations to
any case law. It is well-settled that “[t]he argument portion of an appellate
brief must include a pertinent discussion of the particular point raised along
with discussion and citation of pertinent authorities.” In re Estate of
Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (citation omitted); see also
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Pa.R.A.P. 2119(a) (stating that the argument should include “such
discussion and citation of authorities as are deemed pertinent.”). An
argument that fails to cite to relevant case or statutory authority
“constitutes waiver of the claim on appeal.” In re Estate of Whitley, 50
A.3d at 209. Thus, based upon Parsons’s failure to cite any legal authority
in support of these bald arguments, we deem the claims waived on appeal.
See id. at 210.
In her first, second, third, and tenth claims, Parsons raises issues
related to the trial court’s grant of the Defendants’ various preliminary
objections for failing to provide proper notice of Parsons’s action. Parsons
contends that the trial court erred in requiring her to serve the Writ of
Summons on Rusty Smith within 30 days of filing. Brief for Appellant at 8.
Parsons argues that Rusty Smith moved and did not leave a forwarding
address. Id. Parsons asserts that serving the Writ of Summons without the
benefit of an address constitutes a waste of money and time. Id. at 9.
Parsons also contends that the trial court erred in placing the burden
of proof on her to demonstrate that the Defendants suffered harm from the
delay in service. Id. Parsons further argues that at the hearing, the trial
court should have considered evidence, including that she had retained
counsel shortly before the statute of limitations expired and that counsel was
preparing the case. Id. at 10. Parsons asserts that her counsel also sent
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the Writ of Summons to the Defendants’ insurance carriers, as evidence that
the Defendants had notice of the action. Id.
Parsons additionally claims that the trial court erred when it struck her
Writ of Summons and dismissed her Complaint under the test set forth in
Lamp. Id. at 13. Parsons asserts that the trial court should have utilized
the test set forth in McCreesh, which required a finding of no actual notice
and prejudice to the Defendants. Id. at 14.
Pennsylvania Rule of Civil Procedure 401 dictates the period within
which service is to be made:
(a) Original process shall be served within the Commonwealth
within thirty days after the issuance of the writ or the filing of
the complaint.
(b)(1) If service within the Commonwealth is not made within
the time prescribed by subdivision (a) of this rule or outside the
Commonwealth within the time prescribed by Rule 404, the
prothonotary upon praecipe and upon presentation of the
original process, shall continue its validity by reissuing the writ
or reinstating the complaint, by writing thereon “reissued” in the
case of a writ or “reinstated” in the case of a complaint.
(2) A writ may be reissued or a complaint reinstated at any time
and any number of times. A new party defendant may be named
in a reissued writ or a reinstated complaint.
***
(4) A reissued, reinstated or substituted writ or complaint shall
be served within the applicable time prescribed by subdivision
(a) of this rule or by Rule 404 after reissuance, reinstatement or
substitution.
(5) If an action is commenced by writ of summons and a
complaint is thereafter filed, the plaintiff instead of reissuing the
writ may treat the complaint as alternative original process and
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as the equivalent for all purposes of a reissued writ, reissued as
of the date of the filing of the complaint. Thereafter the writ
may be reissued, or the complaint may be reinstated as the
equivalent of a reissuance of the writ, and the plaintiff may use
either the reissued writ or the reinstated complaint as alternative
original process.
Pa.R.C.P. 401 (note omitted).
Our Court has set forth the relevant legal precepts regarding
effectuation of service of original process as follows:
[P]ursuant to Lamp, and Farinacci v. Beaver County
Industrial Development Authority, 510 Pa. 589, 511 A.2d
757 (1986), th[e] 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 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
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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).
***
[Our Supreme Court’s recent decision in McCreesh clarified
“what constitutes a good faith effort by a plaintiff to effectuate
notice to a defendant of the commencement of an action.”
McCreesh, 888 A.2d at 665.] The Court reviewed the rules set
forth in Lamp and Farinacci as well as the appellate decisions
which followed. It also reiterated the well-established principle
that the “purpose of any statute of limitations is to expedite
litigation and thus discourage delay and the presentation of stale
claims which may greatly prejudice the defense of such claims.”
[Id. at 671] (citation omitted). The Court further observed that,
“once the action has been commenced, the defendant must be
provided notice of the action in order for the purpose of the
statutes of limitations to be fulfilled.” [Id. at 671]. It quoted
Lamp’s 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.” [Id. at 672] (quoting
Lamp at 478, 366 A.2d at 889). The Court also noted that it
had “subtly altered” its holding in Lamp in Farinacci by
“requiring plaintiffs to demonstrate ‘a good-faith effort to
effectuate notice of commencement of the action.’” McCreesh
at 224, 888 A.2d at 672 (quoting Farinacci at 594, 511 A.2d at
759). The inquiry into “whether a plaintiff acted in good faith
lies within the sound discretion of the trial court.” McCreesh at
224, 888 A.2d at 672.
The McCreesh Court explained that it was “merely reanimating
the purpose” of Lamp, and it approved of an approach which
would dismiss a plaintiff’s complaint where he or she either
“demonstrated an intent to stall the judicial machinery” or where
his or her noncompliance with the procedural rules resulted in
prejudice. Id. at 227, 888 A.2d at 674. In other words, the
Court concluded that where a plaintiff “has satisfied the purpose
of the statute of limitations by supplying a defendant with actual
notice,” noncompliance with the Rules would be excused under
Lamp. Id. at 227, 888 A.2d at 674.
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Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122, 124-26 (Pa. Super.
2007).
Contrary to Parsons’s argument, McCreesh did not overrule Lamp,
but instead clarified “what constitutes a good faith effort by a plaintiff to
effectuate notice to a defendant of the commencement of an action.”
McCreesh, 888 A.2d at 665; see also id. at 672. In the instant case, the
record reflects that Parsons never requested service of the Writ of Summons
by the sheriff when it was initially filed or the eleven times it was reinstated.
See Trial Court Opinion, 10/3/14, at 8 (finding that there was no evidence of
any effort by Parsons to provide timely service of the Writ of Summons upon
the Defendants). There is no evidence that Parsons provided a copy of the
Writ to the Defendants by any other manner, or otherwise put the
Defendants on notice of the action until approximately one year after the
statute of limitations had expired, when a copy of the Complaint was served
on the Defendants. See Moses, 725 A.2d at 797 (stating that “[t]aking no
steps whatsoever to serve the writ of summons once having filed a praecipe
for its issuance renders subsequent efforts to initiate the cause of action
after the statute of limitations has run a ‘nullity.’”).
Moreover, Parsons’s argument that her dealings with the insurance
companies, which transpired following the expiration of the statute of
limitations, put the Defendants on actual notice of the litigation is without
merit. See Ferrara v. Hoover, 636 A.2d 1151, 1153 (Pa. Super. 1994)
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(concluding that there is no merit to appellant’s contention that
“communication between appellant and appellees’ insurance adjuster serves
as a substitute for actual service of process.”). Even assuming that the
insurance companies qualify as Defendants’ agents, actual notice of the
potential for litigation is not sufficient; the Defendants must have actual
notice of the commencement of litigation to satisfy the Lamp rule. See
McCreesh, 888 A.2d at 672 n.17 (observing that claims could be dismissed
where the defendant “had notice of the potential for litigation, [but] it did
not have actual notice of the commencement of the litigation within the
statute of limitations period.”); Englert, 932 A.2d at 127 (same). Although
Parsons justifies the delay in service based on Rusty Smith’s change of
address and the late hiring of her attorney, Parsons never made a good faith
attempt to serve the Defendants and her lack of diligence demonstrated an
intent to stall the judicial machinery. See Englert, 932 A.2d at 126-27
(concluding that the plaintiffs’ inaction in properly serving the writ upon the
defendant prior to the expiration of the statute of limitations demonstrated
an intent to stall the judiciary machinery); Devine, 863 A.2d at 1168
(stating that appellant’s conduct in failing to fulfill the requirements of
service amounted to neglect). Therefore, Parsons’s conduct cannot be
considered a technical misstep, and we conclude that the trial court did not
abuse its discretion in finding that Parsons had failed to satisfy the good-
faith effort requirement of Lamp and McCreesh.
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In the alternative, Parsons argues that the trial court erred in failing to
consider whether the Defendants had suffered any prejudice. However, an
inquiry into prejudice was unnecessary under these circumstances. See
McCreesh, 888 A.2d at 674 (stating that plaintiff’s claims could be
dismissed only 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.”) (emphasis added). Indeed,
since (a) Parsons did not establish that she had engaged in a good-faith
effort to secure service upon the Defendants in a timely manner; (b) service
was not accomplished within the statute of limitations; and (c) there was no
actual notice of the commencement of litigation, it was unnecessary to
consider whether the Defendants had suffered any prejudice.2
Based upon the foregoing, we conclude that there is no basis to
disturb the trial court’s grant of the various preliminary objections and
dismissal of the action. See Englert, 932 A.2d at 128 (concluding that
summary judgment was properly entered where appellants could not pursue
2
While the McCreesh Court stated these grounds are disjunctive, it
analyzed both prongs. McCreesh, 888 A.2d at 674; see also Englert, 932
A.2d at 127 (addressing each bases of the test set forth in McCreesh).
Even if we were to address the prejudice prong, we would conclude that the
Defendants were prejudiced by the delay in Parsons’s notification of the
action. The Defendants were not notified of the action until nearly one year
after the statute of limitations had expired. See Englert, 932 A.2d at 127
(concluding that 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 by such claims).
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their negligence claim due to their failure to demonstrate a good faith effort
to effectuate service within the statute of limitations); see also Cahill v.
Schults, 643 A.2d 121, 123 (Pa. Super. 1994) (stating that “[t]he mere
filing of a praecipe for a writ of summons, without additional affirmative
action to effect service of the writ, does not constitute a good faith effort to
notify a defendant that he is being sued, and therefore is not sufficient to toll
the statute of limitations and preserve a cause of action.”) (citation
omitted); Ferrara, 636 A.2d at 1153 (stating that appellees “have a
reasonable expectation to assure that once the statute of limitations has run
they will no longer shoulder the burden of possible litigation.”).3
In her eighth and twelfth claims on appeal, Parsons challenges the
timeliness of the Preliminary Objections filed by ARC and Rusty Smith. 4
Brief for Appellant at 12-13, 15-17. Parsons contends that the sheriff served
the Complaint on ARC on April 14, 2014, but ARC did not file its Preliminary
Objections until May 16, 2014, well over the twenty-day limit to file
preliminary objections. Id. at 12, 15. Parsons further contends that the
3
We note that the trial court, without explanation, dismissed ARC’s
Preliminary Objections as moot despite the fact that Parsons raised separate
claims against Rusty Smith, Rose Valley, and ARC in her Complaint. Cf.
Brief for ARC at 2 n.1 (stating that “[t]he reason for dismissing [ARC’s]
Preliminary Objections as moot appears to be practical; by sustaining the
other preliminary objections, all claims were dismissed.”). Nevertheless, the
trial court struck Parsons’s Writ of Summons and dismissed the Complaint.
Thus, despite erroneously dismissing ARC’s Preliminary Objections as moot,
we conclude that there are no outstanding claims that Parsons may pursue,
as the trial court dismissed the entirety of the action with prejudice.
4
Parsons does not raise any claims involving Rose Valley in this regard.
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sheriff served the Complaint on Rusty Smith on April 25, 2014, but Rusty
Smith did not file its Preliminary Objections until May 12, 2014, and its
Supplemental Preliminary Objections until May 20, 2014. Id. at 16-17.5
Pennsylvania Rule of Civil Procedure 1026(a) provides, in relevant
part, that “every pleading subsequent to the complaint shall be filed within
twenty days after service of the preceding pleading.” Pa.R.C.P. 1026(a).
This twenty day filing period has been interpreted liberally and is
permissive rather than mandatory. The decision of whether an
extension of time shall be granted is within the discretion of the
trial court. A late pleading may be filed if the opposing party is
not prejudiced and justice requires. Prejudice results when an
opposing party’s delay causes a party any substantial diminution
in their ability to present factual information in the event of trial.
Weaver v. Martin, 655 A.2d 180, 183-84 (Pa. Super. 1995) (citations and
quotation marks omitted); see also Liberty Mut. Ins. Co. v. Domtar
Paper Co., 77 A.3d 1282, 1285 (Pa. Super. 2013) (stating that Rule
1026(a) “is not mandatory but permissive. We have held that late pleadings
may be filed if the opposite party is not prejudiced and justice requires.
Much must be left to the discretion of the lower court.”) (citation omitted).
The party with the burden to establish prejudice must demonstrate that they
were prejudiced “from the fact that the allegations are offered late rather
than on time, and not such prejudice as results from the fact that the
5
As part of her eighth claim, Parsons also argues that ARC sent the trial
court additional materials following the hearing on the various preliminary
objections. Brief for Appellant at 13. However, other than this bald
statement, Parsons has not set forth any pertinent analysis or citation to
case law to support her proposition. See Pa.R.A.P. 2119(a). Thus, Parsons
has waived this argument. See In re Estate of Whitley, 50 A.3d at 209.
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opponent may lose the case on the merits if the pleading is allowed.”
Ambrose v. Cross Creek Condominiums, 602 A.2d 864, 868 (Pa. Super.
1992) (emphasis in original).
In the action against Rusty Smith, the sheriff served Parsons’s
Complaint on Rusty Smith on April 25, 2014. N.T., 6/20/14, at 7-8. Rusty
Smith’s original Preliminary Objections were filed on May 12, 2014, well
within the mandated twenty-day period under Rule 1026(a). Thus,
Parsons’s claims against Rusty Smith are without support in the record.6
With regard to ARC, the sheriff served Parsons’s Complaint on ARC on
April 14, 2014. N.T., 6/20/14, at 7. ARC filed its Preliminary Objections on
May 16, 2014, which was twelve days late under Rule 1026(a). However,
Parsons has not argued or demonstrated that she suffered prejudice caused
by the delay in ARC’s filing. See Ambrose, 602 A.2d at 868 (stating that
the trial court did not abuse its discretion in refusing to strike the
defendant’s late-filed preliminary objections where plaintiffs did not aver
that they were prejudiced by the delay); see also Chester Upland Sch.
Dist. v. Yesavage, 653 A.2d 1319, 1323-24 (Pa. Cmwlth. 1994)
(concluding that trial court properly refused to strike the preliminary
objections that were filed eighty-five days late where no allegation of
prejudice based on the late filing was made).
6
Parsons does not raise any claims regarding Rusty Smith’s filing of
Supplemental Preliminary Objections.
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In any event, even if the trial court had dismissed ARC’s Preliminary
Objections for being untimely, the issue raised by ARC in the Preliminary
Objections could have been raised in a motion for judgment on the pleadings
or motion for summary judgment. See Liberty Mut. Ins. Co., 77 A.3d at
1286 (stating that even if the trial court had dismissed the appellees’
preliminary objections for being untimely filed, the issues raised by the
appellees “would simply be re-raised on judgment to the pleadings or a
nonsuit.”); see also Englert, 932 A.2d at 128 (concluding that summary
judgment was properly entered where appellants could not pursue their
negligence claim due to their failure to demonstrate a good faith effort to
effectuate service within the statute of limitations); Ferrara, 636 A.2d at
1153 (concluding that trial court properly granted appellees’ motion for
judgment on the pleadings where appellant’s lack of timely and proper
service of the writ of summons resulted in the action being barred by the
statute of limitations). Thus, we cannot grant Parsons relief on her claims.
In her seventh claim, Parsons contends that the trial court erred in
demanding additional argument on the various preliminary objections
following the hearing without providing her notice. Brief for Appellant at 12.
Parsons claims that as a result, the Defendants raised legal authority, i.e.,
Ferrara, supra, that was not contained in the briefs supporting the various
preliminary objections. Id.
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Here, following oral argument on the Defendants’ various preliminary
objections, the trial court scheduled a hearing for June 20, 2014. Trial Court
Order, 6/13/14. At the hearing, Parsons’s attorney testified and introduced
various documents in opposition to the preliminary objections. N.T.,
6/20/14, at 8-24. Following the conclusion of the testimony and
introduction of documents, the trial court heard argument from the
attorneys to address the evidence presented at the hearing in the context of
the preliminary objections. Id. at 25. Thereafter, the Defendants’ attorneys
cited case law, including Ferrara, in support of their position. Id. at 25-30,
32-34.
Based upon this record, we conclude that the trial court did not abuse
its discretion in considering further argument following the hearing. Parsons
has not established how she was prejudiced by the introduction of applicable
case law that was not cited in the briefs supporting the various preliminary
objections. Indeed, Parsons had every opportunity to rebut the arguments
made by the Defendants. Thus, Parsons’s seventh claim is without merit.7
In her ninth claim, Parsons additionally contends that the “trial court
erred when it ended its normal practice of dismissing [Lamp] preliminary
7
Parsons asserts that Ferrara is inapplicable in this case because that case
is “about service, not notice.” Brief for Appellant at 12. However, the
Ferrara Court, relying upon Lamp, concluded that the appellant “did not
take any affirmative action to see that the writ was served and to put the
defendant on notice that an action had been filed against him.” Ferrara,
636 A.2d at 1152 (citation omitted). Parsons’s interpretation of Ferrara is
erroneous and does not entitle her relief.
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objections without argument or hearing.” Id. at 13. Parsons cites to two
court of common pleas decisions to support her contention. However, it is
well-settled that this Court is not bound by decisions of the courts of
common pleas. Liberty Mut. Ins. Co., 77 A.3d at 1285. Moreover, to the
extent Parsons again argues that the Defendants’ various preliminary
objections were untimely, we conclude that this argument is without merit
based upon the above reasoning. For the foregoing reasons, Parsons’s ninth
claim is without merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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