J-A20043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHARLES P. MCDADE AND KATHLEEN T. IN THE SUPERIOR COURT OF
MCDADE PENNSYLVANIA
Appellants
v.
RICHARD E. MOSES, D.O.;
PHILADELPHIA GASTROENTEROLOGY
CONSULTANTS, LTD.; PGC ENDOSCOPY
CENTER, INC., DAWN S. KEOWN,
C.R.N.A.; PENN VALLEY ANESTHESIA
ASSOCIATES, LLC.
Appellee No. 314 EDA 2015
Appeal from the Judgment Entered on February 16, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: 120500763
BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED OCTOBER 15, 2015
Charles and Kathleen McDade (collectively “the McDades”) appeal the
judgment entered on February 16, 2015. We affirm.
On May 10, 2010, Richard Moses, D.O. (“Dr. Moses”) performed a
colonoscopy on Charles McDade (“Mr. McDade”). Dawn Keown (“Ms.
Keown”), a Certified Registered Nurse Anesthetist, administered anesthesia
during the procedure. Mr. McDade went home after the colonoscopy, but
began to experience nausea, vomiting, fever, chills, and uncontrollable
shaking. Mr. McDade went to the emergency room at Jeanes Hospital in
Philadelphia, and was admitted to the intensive care unit. His condition
quickly improved, and the hospital discharged Mr. McDade on May 12, 2010.
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After his discharge, Mr. McDade experienced severe rectal pain and
swelling. On June 14, 2010, a dermatologist referred Mr. McDade to the
emergency department at Holy Redeemer Hospital in Philadelphia, where he
underwent surgical incision and drainage of a perianal abscess on his right
buttock. On June 18, 2010, a staff member from Holy Redeemer informed
Mr. McDade that cultures taken from his abscess had tested positive for
methicillin-resistant Staphylococcus aureus (“MRSA”). See The McDades’
Complaint, 5/10/2010, at 6-7.
The tortured procedural history of this case begins on May 10, 2012,
when the McDades filed a complaint alleging medical malpractice on the part
of Dr. Moses, Ms. Keown, Philadelphia Gastroenterology Consultants, Ltd.
(“Philadelphia Gastroenterology”), PGC Endoscopy Center, Inc. (“PGC”),
Penn Valley Anesthesia Associates, LLC (“Penn Valley”), and Jeanes Hospital.
On October 2, 2012, the McDades filed an amended complaint. In doing so,
the McDades removed Jeanes Hospital as a named defendant in the caption,
and deleted from the body of their complaint all specific allegations against
Jeanes Hospital. On October 8, 2012, a Philadelphia County deputy sheriff
attempted to serve both Ms. Keown and Penn Valley. The sheriff’s return of
service affidavits, filed with the trial court on November 9, 2012, stated only
that both parties were “unknown,” and could not be located. See Return of
Service, 11/9/2012, at 1.
On November 5, 2012, the McDades filed a praecipe to reinstate the
original complaint, which included Jeanes hospital as a defendant. On
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December 5, 2012, the McDades filed a second praecipe to reinstate the
original complaint. On January 3, 2013, the McDades filed yet another
praecipe to reinstate the original complaint. The McDades did not attempt to
serve Ms. Keown with any of these reinstated complaints.
On November 27, 2013, the McDades filed a fourth praecipe to
reinstate the complaint. This time, however, the McDades praeciped the
prothonotary to reinstate their amended complaint. On December 6, 2013,
nineteen months after commencing this litigation, the McDades served Ms.
Keown with original process. On January 16, 2014, Ms. Keown filed an
answer and new matter to the McDades’ complaint. Therein, Ms. Keown
averred that the McDades’ claims were barred as a matter of law because
the McDades failed to make good-faith efforts to effectuate service of
process prior to the expiration of the statute of limitations. See Keown’s
Answer and New Matter, 1/16/2014, at 4 (citing Lamp v. Heyman, 366
A.2d 882 (Pa. 1976) (holding that the failure to make good-faith efforts to
serve a defendant will nullify tolling of the statute of limitations)); see 42
Pa.C.S. § 5524 (prescribing a two year statute of limitations for negligence
actions).
On February 19, 2014, the McDades filed a motion to reissue/reinstate
their original complaint so that they could serve it upon Jeanes Hospital.
According to their motion, the McDades’ prior counsel in this matter
mistakenly believed that Jeanes Hospital had been dismissed as a defendant.
As a result, the McDades never served Jeanes Hospital with—and the
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hospital did not otherwise receive notice of—the complaint that the McDades
had filed nearly two years earlier. On March 26, 2014, the trial court denied
the McDades’ motion.
On October 15, 2014, Ms. Keown filed a motion for summary
judgment. Therein, she asserted that (1) all of the McDades’ claims against
her were time-barred because the statute of limitations had expired in May
2012, two years after Mr. McDade’s colonoscopy; (2) the McDades did not
serve her with the complaint until December 2013; (3) the McDades did not
make good-faith efforts to effectuate service of the complaint; and (4) she
did not otherwise have actual notice of the litigation prior to December
2013.
In response, the McDades argued that (1) they served Ms. Keown
within thirty days of the reissuance of the complaint; (2) Ms. Keown waived
her challenge to the statute of limitations because she failed to file
preliminary objections and she participated in discovery; and (3) Ms. Keown
did not suffer prejudice.
On December 18, 2014, the trial court granted Ms. Keown’s motion for
summary judgment.1 Specifically, the trial court held that, although the
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1
In their complaint, the McDades alleged that Penn Valley is vicariously
liable for Ms. Keown’s negligent acts and omissions. Because the McDades’
claims against Penn Valley relied exclusively upon the theory of respondeat
superior, the trial court’s entry of judgment in favor of Ms. Keown precluded
those claims as well. See Scampone v. Highland Park Care Ctr., LLC, 57
A.3d 582, 598 (Pa. 2012) (“[T]ermination of the claim against the agent
extinguishes the derivative [vicarious liability] claim against the principal.”).
For this reason, the trial court entered an order on January 5, 2015,
(Footnote Continued Next Page)
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McDades had filed their initial complaint within the statute of limitations,
they failed to make good-faith efforts to serve it upon Ms. Keown. According
to the trial court, the McDades’ lack of good-faith nullified tolling of the
statute of limitations pursuant to Lamp. See Order, 12/19/2014, at 2
(unnumbered) (citing Lamp, 366 A.2d 882).
On December 31, 2014, the McDades filed a notice of appeal, which
this Court docketed at 314 EDA 2015. On that same day, the McDades filed
with the trial court a motion to stay the proceedings against the remaining
defendants. On January 5, 2015, the trial court denied that motion and
ordered the McDades to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on or before January 26, 2015. The
McDades did not comply with that order.
Also on January 5, 2015, the three remaining defendants (Dr. Moses,
Philadelphia Gastroenterology, and PGC) proceeded to a jury trial. On
January 8, 2015, the jury returned a verdict in favor of the remaining
defendants. On February 5, 2015, the trial court issued its Pa.R.A.P.
1925(a) opinion, wherein it determined that all of the McDades’ appellate
claims were waived in light of their failure to file a timely concise statement.
While it is true that an appellant who fails to comply with an order to
file a Rule 1925(b) statement waives all of his or her issues on appeal, see
In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007), it is also well-established
_______________________
(Footnote Continued)
dismissing Penn Valley from the action with prejudice. The McDades do not
challenge that order in this appeal.
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that appellate courts—subject to some exceptions that are inapplicable
here—only have jurisdiction over appeals taken from final orders. See
Pa.R.A.P. 341(a); Commonwealth v. Scarborough, 64 A.3d 602, 608 (Pa.
2013). A final order is one that disposes of all claims and all parties, or one
that is expressly defined as a final order either by statute or by the trial
court pursuant to Pa.R.A.P. 341.
The order that the McDades appealed from on December 31, 2014, did
not dispose of all of the McDades’ claims or all of the parties. Dr. Moses,
Philadelphia Gastroenterology, and PGC all remained as defendants following
the trial court’s entry of summary judgment. Therefore, the trial court’s
December 18, 2014 order was not an appealable final order, and the appeal
docketed at 314 EDA 2015 is interlocutory. K.H. v. J.R., 826 A.2d 863, 869
(Pa. 2003) (“[I]n an action involving multiple defendants, and in the absence
of an express determination by the trial court under [Pa.R.A.P.] 341(c), an
order granting summary judgment as to one party is treated as appealable
as of right only after the disposition of the claims involving the remaining
parties.”).
On February 5, 2015, the McDades filed a second notice of appeal,
which we docketed at 513 EDA 2015. Although not ordered to do so by the
trial court, the McDades filed a concise statement of errors complained of on
appeal on February 12, 2015. In their concise statement, the McDades set
forth two errors. First, the McDades contended that the trial court erred in
granting summary judgment in favor of Ms. Keown. Second, the McDades
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alleged that the trial court erred in denying their February 19, 2014 motion
to reissue/reinstate their original complaint. On April 10, 2015, the trial
court issued a second opinion pursuant to Pa.R.A.P. 1925(a). The trial court
acknowledged that it failed to recognize in its earlier opinion that the
McDades had prematurely filed their first notice of appeal. See Trial Court
Opinion, 4/10/2015, at 5.2
The McDades present two issues for our consideration:
1. Did the [trial court] err in denying [the McDades’] motion to
reinstate Jeanes Hospital as a defendant when Jeanes
Hospital was never properly dismissed from the complaint,
was not a “new” defendant, and removal from the complaint
may have been the result of a clerical error or
misunderstanding?
2. Did the [trial court] err in granting summary judgment to
[Ms. Keown] based on [the McDades’] alleged failure to make
a good[-]faith attempt to serve [Ms. Keown] with original
service of process when [the McDades] could not locate [Ms.
Keown] and [Ms. Keown] fully litigated the matter until the
eve of trial?
Brief for Appellant at 1 (minor modifications for clarity).
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2
On April 14, 2015, this Court sua sponte quashed the McDades’ appeal
at 513 EDA 2014, finding it to be “unnecessary and duplicative.” See Order,
4/14/2015, at 1. Nevertheless, we emphasized that our order did not
preclude the McDades from challenging the trial court’s denial of their
motion for reissuance of the complaint within the appeal at 314 EDA 2015.
Id. Although the language that we used in our order demonstrates our
intent to allow the McDades to present both of their issues within a single
appeal, we improvidently quashed the McDades’ procedurally compliant
appeal, leaving them only with an appeal that our rules of appellate
procedure instruct us to quash. See generally Pa.R.A.P. 341. Because it
would be unjust to subvert the McDades’ right to appellate review when we
clearly did not intend for our order to have such an effect, we will consider
the merits of their claims.
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For ease of disposition, we will consider these issues in reverse order.
In their second issue, the McDades contend that the trial court erred in
granting Ms. Keown’s motion for summary judgment. “Our scope of review
of a trial court’s order granting or denying summary judgment is plenary,
and our standard of review is clear: the trial court’s order will be reversed
only where it is established that the court committed an error of law or
abused its discretion.” Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001)
(citation omitted).
Summary judgment is appropriate only when the record clearly
shows that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. The
reviewing court must view the record in the light most favorable
to the nonmoving party and resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party. Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary
judgment.
Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins.
Co., 908 A.2d 888, 895-96 (Pa. 2006) (citations omitted).
It is well settled that service of original process completes the
progression of events by which a plaintiff commences an action. See Lamp,
366 A.2d 882; Farinacci v. Beaver Cty. Indus. Dev. Auth., 511 A.2d 757
(Pa. 1986). Once a plaintiff files a writ of summons or a complaint, the
statute of limitations is tolled only if the plaintiff then makes a good-faith
effort to effectuate service of process. Moses v. T.N.T. Red Star Express,
725 A.2d 792, 796 (Pa. Super. 1999). “What constitutes a ‘good[-]faith’
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effort to serve legal process is a matter to be assessed on a case by case
basis.” Id.; Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004).
“[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, 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, 863 A.2d at 1168 (quoting Rosenberg v. Nicholson, 597 A.2d
145, 148 (Pa. Super. 1991)). “[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 Univ. Hosp., 658 A.2d 423, 433 (Pa.
Super. 1995).
Instantly, the trial court concluded that the McDades did not undertake
good-faith efforts to serve Ms. Keown with the complaint prior to the
expiration of the statute of limitations. The McDades filed their original
complaint on May 10, 2012, which both parties agree was within the statute
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of limitations.3 Five months later, on October 8, 2012, the McDades made
one unsuccessful attempt to serve Ms. Keown. For the next 423 days, the
McDades made no additional efforts to serve Ms. Keown. They never filed a
motion for alternative service pursuant to Pa.R.C.P. 430.4 Nor did they, in
response to Ms. Keown’s motion for summary judgment, explain why they
sat idly for nearly fourteen months without attempting service. Based upon
these undisputed facts, the trial court held that the McDades failed to meet
their burden to establish that they made good-faith efforts to serve Ms.
Keown with notice of the action, and granted Ms. Keown’s motion for
summary judgment.
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3
According to Ms. Keown, the statute of limitations began to run on May
10, 2010, the date of Mr. McDade’s colonoscopy. The McDades, on the other
hand, argue that the statute of limitations did not begin to run until April 28,
2011, when the McDades allegedly learned that Mr. McDade’s MRSA infection
was chronic. See generally Fine v. Checcio, 870 A.2d 850, 859 (Pa.
2005) (“[T]he discovery rule applies to toll the statute of limitations in any
case where a party neither knows nor reasonably should have known of his
injury and its cause at the time his right to institute suit arises.”). The trial
court accepted the McDades’ position, but concluded that they failed to make
good-faith efforts to serve Ms. Keown before the statute of limitations had
run. Thus, we need not discuss at length which calculation is correct. We
will assume, arguendo, that the statute of limitations expired on April 28,
2013.
4
In their brief, the McDades argue that “[m]oving for a special order
directing the method of service would have been an exercise in futility”
because they were unable to locate Ms. Keown. Brief for the McDades at 16.
We disagree. Pa.R.C.P. 430 explicitly empowers the trial court to authorize
service by publication when a party cannot be found or actively evades
service.
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In this appeal, the McDades do not challenge the trial court’s
application of the legal principles set forth in Lamp and its progeny.
Instead, they argue that the trial court erred in granting Ms. Keown’s motion
for summary judgment because Ms. Keown actively participated in the
litigation before filing her motion. Specifically, the McDades assert that “[i]t
was neither just, nor speedy, nor inexpensive for [Ms. Keown] to sit on [her]
rights and require [the McDades] to expend time, money, and energy
litigating a case against [her] only for [Ms. Keown] to move for summary
judgment on the eve [of] trial.” Brief for the McDades at 17.
As a preliminary matter, we note that the record belies the McDades’
suggestion that they were blindsided “on the eve [of] trial.” 5 Ms. Keown first
raised the statute of limitations defense in her answer and new matter,
which she filed on January 16, 2014.6 Notwithstanding their assertion that
Ms. Keown’s delay in moving for summary judgment prejudiced them, the
McDades do not describe how the trial court abused its discretion in granting
Ms. Keown’s motion for summary judgment. Nor do they direct us to any
cases in which Pennsylvania courts have held that a defendant must
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5
The McDades apparently use this phrase hyperbolically. Ms. Keown
filed her motion for summary judgment on October 15, 2014, after the
completion of discovery. The trial was scheduled to commence on January
5, 2015.
6
The McDades knew of their statute of limitations troubles long before
trial. Dr. Moses raised the issue immediately after he joined the litigation in
September 2012. Dr. Moses filed preliminary objections and a motion for
judgment on the pleadings, and he deposed the deputy sheriff in order to
determine the efforts that the sheriff had made to serve the various parties.
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challenge a plaintiff’s failure to effectuate service within the statute of
limitations before discovery is complete. Consequently, this issue is without
merit.
In their second issue, the McDades argue that the trial court erred in
denying their February 19, 2014 motion to reissue/reinstate the original
complaint against Jeanes Hospital.7 We disagree. Pursuant to the
Pennsylvania Rules of Civil Procedure, a plaintiff seeking reissuance or
reinstatement of a complaint must file a praecipe with the prothonotary, not
a motion with the trial court. Pa.R.C.P. 401. The McDades do not cite any
legal authority to support their contention that the trial court erred in
denying their motion to reissue/reinstate the original complaint. Nor do they
direct us to any rule of civil procedure that endorses the use of motions
practice as a substitute for filing a praecipe with the prothonotary.
Almost two years after commencing this litigation, the McDades filed a
procedurally deficient motion, which the trial court denied. Even if the trial
court had assumed the role of the prothonotary, the statute of limitations
had long since lapsed, and the McDades’ claims against Jeanes Hospital
likely would have suffered the same fate as their claims against Ms. Keown.
Judgment affirmed.
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7
Jeanes Hospital is not a party to this appeal because the McDades, to
this day, have not served them. Based upon the certificate of service
attached to the McDades’ appellate brief, it does not appear that Jeanes
Hospital is even aware of this appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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McDade, C. v. Moses, R.
Combined Opinion