J-S84017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL ROYTMAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KAREN CESARONE
Appellee No. 3345 EDA 2015
Appeal from the Order Dated October 6, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-32160
BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 14, 2017
Appellant Michael Roytman appeals from the order sustaining the
preliminary objection of Appellee Karen Cesarone and dismissing Roytman’s
complaint with prejudice for failure to make timely service. We affirm.
Roytman’s complaint avers one count of negligence stemming from an
alleged traffic collision between Roytman and Cesarone on November 1,
2011. Roytman filed his complaint in the Court of Common Pleas of
Montgomery County on October 28, 2013, just two days before the two-year
statute of limitations would have run. See 42 Pa.C.S. § 5524(2). He claims
that he waited so long to file suit because he was trying to settle the case
with Cesarone’s insurance company, but he does not claim that he ever
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S84017-16
provided Cesarone with actual notice of the suit in connection with those
efforts. See Plaintiff’s Response to Defendant’s Prelim. Obj. ¶¶ 4-7.
Rule 401(a) of the Rules of Civil Procedure provides, “Original process
shall be served within the Commonwealth within thirty days after . . . the
filing of the complaint.” Roytman claims that he asked the Montgomery
County Sheriff to have the complaint served on Cesarone at her address in
Doylestown, Bucks County, within that 30 days, but that “[t]he Montgomery
County Sheriff’s Office was ineffective in effectuating service.” Id. ¶¶ 9-10.
There is no indication on the docket that service was ever requested or
attempted at that time, however. See Tr. Ct. Op., 3/14/16, at 4 (“The
docket reflects no attempt to serve [Cesarone] with the Complaint within the
required thirty (30) days”).1
Rule 401(b) of the Rules of Civil Procedure provides:
____________________________________________
1
Roytman included in the record a copy of a November 7, 2013 letter from
his counsel to the Office of Montgomery County Sheriff that requested
service and said it was enclosing two checks numbered 1058 (for $28.00,
made payable to the Montgomery County Sheriff) and 1060 (for $58.00,
made payable to the Bucks County Sheriff) for the payment of fees. He also
included copies of the front sides of both checks, each of which was dated
November 7, 2013; but he did not include the backs of the checks or any
information showing their endorsement. As noted in the text, Roytman had
the complaint reissued on December 20, 2013, and, on December 26, 2013,
he sent a letter to the Montgomery County Sheriff’s Office requesting service
of the reissued complaint. The December 26, 2013 letter said it was
enclosing checks numbered 1058 (for $28.00, made payable to the
Montgomery County Sheriff) and 1060 (for $58.00, made payable to the
Bucks County Sheriff). The correspondence thus suggests that the checks
for the sheriffs’ fees were not submitted until the time Roytman asked for
service of the reissued complaint on December 26, 2013.
-2-
J-S84017-16
(1) If service within the Commonwealth is not made within the
time prescribed by subdivision (a) of this rule . . ., 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 . . . “reinstated”
in the case of a complaint.
(2) . . . [A] complaint [may be] reinstated at any time and any
number of times. . . .
(4) A reissued, reinstated or substituted . . . complaint shall be
served within the applicable time prescribed by subdivision (a) of
this rule . . . .
On December 20, 2013, Roytman praeciped to reinstate the complaint.
However, the praecipe did not include presentation of original process, as
required by Rule 401(b)(1). On December 26, 2013, Roytman’s counsel
wrote to the Montgomery County Sheriff requesting service of the reinstated
complaint. The process was returned unserved.2
Nearly one year later, on January 7, 2015, Roytman again had the
complaint reinstated. This time, Roytman was successful in having Cesarone
served by the sheriff on January 28, 2015. She was served by hand-delivery
at the same home address in Doylestown that had been listed on the
complaint in October 2013.
____________________________________________
2
The record shows that on December 27, 2013, the Montgomery County
Sheriff deputized the Bucks County Sheriff to serve the reinstated complaint
in Bucks County. The Bucks County Sheriff made several attempts to serve
the complaint in January 2014, but was unsuccessful and returned the
reinstated complaint unserved on January 13, 2014. A January 28, 2014
docket entry notes the unsuccessful attempt.
-3-
J-S84017-16
On February 18, 2015, Cesarone filed a preliminary objection under
Rule 1028(a) of the Rules of Civil Procedure that sought dismissal of the
complaint because of an improper delay in service of the complaint. Rule
1026 of the Rules of Civil Procedure provides that a response to a pleading
(including a preliminary objection) must be filed within 20 days, but that no
response need be filed if the preceding pleading is not “endorsed with a
notice to plead.” Cesarone’s preliminary objection was not endorsed with a
notice to plead, but on March 10, 2015, Roytman filed a response anyway.
The response was titled, “Plaintiff’s Response to Defendant’s Preliminary
Objection to Plaintiff’s Complaint”; Roytman did not file a preliminary
objection to Cesarone’s preliminary objection. Roytman’s response asked
that Cesarone’s preliminary objection be overruled.
On October 6, 2015, the trial court sustained Cesarone’s preliminary
objection and dismissed Roytman’s complaint with prejudice “for improper
service of process pursuant to Pa.R.C.P. 1028(a) and untimely
reinstatement.” Order, 10/6/15. The court explained:
[O]nce an action is commenced via a writ of summons or a
complaint, the statute of limitations is only tolled if the plaintiff
makes a good faith effort to effectuate service. As the appellate
court is aware, personal injury actions such as the one at bar
have a two (2) year statute of limitations period. 42 P.C.S.A.
Section 5524(2). Applying the above law to the case at bar,
[Roytman] failed to properly serve the complaint on [Cesarone]
in accordance with Rule 401, supra.
First, [Roytman] filed his Complaint on October 28, 2013.
However, [Roytman] did not serve [Cesarone] with the
Complaint within the required thirty (30) days mandated by
-4-
J-S84017-16
Pa.R.C.P. 401(a). Consequently, reinstatement was necessary
to properly serve [Cesarone]. However, on December 20, 2013,
when [Roytman] filed his Praecipe to Reinstate the Complaint,
[Roytman] presented no proof of original process with this
Praecipe as required by Rule 401(b)(1). Consequently, the
Reinstatement was void and any service thereafter was void. . . .
Next, even assuming arguendo, that the first Reinstated
Complaint was proper, [Roytman] failed to establish a good faith
effort to serve the same in order to toll the statute of limitations.
....
The accident at issue occurred on November 1, 2011 and
[Roytman] filed suit a few days before the statute of limitations
ran. The docket reflects no attempt to serve [Cesarone] with
the Complaint within the required thirty (30) days. Nonetheless
on December 20, 2013, [Roytman] filed a Praecipe to Reinstate
the Complaint. At that point, [Roytman] was already two (2)
years past the date of the accident, with no record evidence of a
service attempt. [Roytman] then did not even attempt to serve
the Reinstated Complaint until almost one (1) year post-
reinstatement, clearly outside of the mandated thirty (30) days.
Consequently, on January 7, 2015, [Roytman] filed a Second
Praecipe to Reinstate the Complaint. This Second Reinstated
Complaint was served on [Cesarone] on January 20, 2015[3], at
her personal address [in Doylestown]. Significantly, this address
is the exact same address cited in the initial Complaint filed
fifteen (15) months earlier. Thus, from the inception of the
action, [Roytman] had [Cesarone]'s correct address, and
nonetheless, waited over one (1) year post-reinstatement, and
over three (3) years post accident to serve [Cesarone], thereby
stalling the legal process in its tracks . . . , and demonstrating a
lack of good faith to serve the pleading.
Tr. Ct. Op., 3/14/16, at 2-5 (citations omitted).
Roytman timely appealed, and, on November 23, 2015, Roytman filed
a three-page Concise Statement of Errors Complained of on Appeal. In his
Statement, Roytman claimed that the trial court erred and abused its
____________________________________________
3
The record shows that the correct date is January 28, 2015.
-5-
J-S84017-16
discretion in sustaining the preliminary objection because Roytman
sufficiently attempted proper service and Cesarone “was not prejudiced by
having received service of the instant suit on January 20, 2015.” Pa.R.A.P.
1925(b) Statement, 11/23/15, at 2-3. Second, Roytman claimed that
Cesarone improperly raised a statute-of-limitations defense by couching it as
an improper service argument. Id. at 3.
In his appellate brief, Roytman raises the following issues in the
Statement of Questions Involved:
I. Did the trial court err in sustaining [Cesarone’s]
preliminary objections on the grounds of improper service and
by making such a judgment from the limited facts of record?
II. Did the trial court err in entertaining [Cesarone’s]
preliminary objections despite the blatant disobedience of
Pennsylvania’s Rules of Civil Procedure governing preliminary
objections?
III. Did the trial court abuse its discretion in sustaining
[Cesarone’s] Preliminary objections and thereby dismissing
[Roytman’s] Complaint?
IV. Did the trial court err in ruling that [Roytman] failed to
satisfy the requirements of what constitutes a “good faith effort”
on the part of [Roytman], pursuant to the standards set forth in
Lamp v. Heyman[, 366 A.2d 882 (Pa. 1976),] and Lei[d]ich v.
Franklin[, 575 A.2d 914 (Pa. Super.), appeal denied, 584 A.2d
319 (Pa. 1990)]?
Roytman’s Brief at 4. For ease of discussion, we shall address Roytman’s
arguments in a different sequence from what he presents in his brief.
On questions of law, our standard of review is de novo and our scope
of review is plenary. Morrison Informatics, Inc. v. Members 1st Fed.
-6-
J-S84017-16
Credit Union, 97 A.3d 1233, 1237 (Pa. Super. 2014), aff’d, 139 A.3d 1241
(Pa. 2016). With respect to timely service of process, “whether a plaintiff
acted in good faith lies within the sound discretion of the trial court.”
McCreesh v. City of Phila., 888 A.2d 664, 672 (Pa. 2005). We therefore
review the record to determine whether the court abused its discretion. See
Englert v. Fazio Mechanical Servs., Inc., 932 A.2d 122, 126 (Pa. Super.
2007.)
An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will, as shown by the evidence
or the record, discretion is abused.
Id. (quoted citation omitted).
Propriety of Cesarone’s Preliminary Objection
As developed in his brief, two of Roytman’s arguments attack the
procedural propriety of Cesarone’s preliminary objection. First, Roytman
contends that Cesarone erred in not endorsing her preliminary objection with
a notice to plead. Roytman’s contention is correct, but Cesarone’s error is
not material here. Rule 1026(a), which provides for the filing of a response
to a preliminary objection or other pleading, provides, “no [responsive]
pleading need be filed unless the preceding pleading . . . is endorsed with a
notice to plead.” But despite the absence of a notice to plead from
Cesarone’s preliminary objection, Roytman filed a response in which he
denied the allegations made by Cesarone. Accordingly, Roytman waived his
-7-
J-S84017-16
right to forego a response under Rule 1026(a).4 In addition, Roytman
waived this argument by failing to include it in his Rule 1925(b) statement.
See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues
not raised in a 1925(b) statement will be deemed waived”). Thus,
Cesarone’s failure to append a notice to plead to her preliminary objection
entitles Roytman to no relief.
Roytman also claims that the preliminary objection was improperly
filed because Cesarone used it to argue “a statute of limitations defense
clandestinely couched as an improper service argument.” Roytman’s Brief at
15. Roytman asserts that a statute-of-limitations defense may be raised
only in new matter under Pa.R.C.P. 1030(a), and that because Cesarone
failed to “properly format [her] response pursuant to Pa.R.C.P. 1030(a),” the
trial court erred in considering it. Once again, we conclude Roytman waived
this issue.
We assume without deciding that Roytman is correct that Cesarone
should have filed an answer with new matter, rather than a preliminary
objection. In that case, however, the “proper method for challenging the
propriety of defendants’ preliminary objections raising the statute of
limitations is by preliminary objections to defendants’ preliminary
objections.” Farinacci v. Beaver County Indus. Dev. Auth., 511 A.2d
____________________________________________
4
We note with disapproval that Roytman never mentions that he filed a
response in his argument of this issue.
-8-
J-S84017-16
757, 759 (Pa. 1986); accord Devine v. Hutt, 863 A.2d 1160, 1167 (Pa.
Super. 2004) (“When a defendant raises a waivable statute of limitations[ 5]
via preliminary objections, the proper challenge is to file preliminary
objections to strike the defendant’s preliminary objections for failure of a
pleading to conform to law or rule of court”). A plaintiff who files an
“answer” or a “response” to a defendant’s preliminary objection, alleging
that the preliminary objection improperly raises a defense, waives the right
to object to the defendant’s form of pleading. See Button v. Button, 548
A.2d 316, 318 (Pa. Super. 1988) (where, rather than preliminarily objecting
to defendant’s preliminary objection, plaintiffs filed an “Answer,” plaintiffs
waived the right to object to defendant’s form of pleading). Here, Roytman
filed a “Response to Defendant’s Preliminary Objection to Plaintiff’s
Complaint,” along with a memorandum of law. By doing so, Roytman
waived any right to object to any procedural deficiency resulting from
Cesarone’s filing of a preliminary objection instead of new matter.
Roytman’s Delayed Service of Process
Roytman’s remaining arguments challenge the trial court’s dismissal of
his case for delayed service of process. Roytman contends that the record
____________________________________________
5
The two-year limitation period established through the general
Pennsylvania statute of limitations that is applicable to this action, 42
Pa.C.S. § 5524(2), is subject to waiver. Marucci v. Lippman, 177 A.2d
616, 617 (Pa. 1962); accord In re Gardner, 218 B.R. 338, 344 (Bankr.
E.D. Pa. 1998).
-9-
J-S84017-16
was insufficient to permit the court to resolve this issue and that the court
erred in holding that he failed to make timely service.
In Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), the Supreme Court
sought to end abuses by plaintiffs who tolled the statute of limitations by
having original process repeatedly reissued without notifying the defendant
that a complaint had been filed. The Court explained:
Our purpose 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. . . . [W]e rule that
henceforth . . . [original process] 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.
366 A.2d at 889. In Leidich v. Franklin, 575 A.2d 914, 918 (Pa. Super.),
appeal denied, 584 A.2d 319 (Pa. 1990), this Court summarized:
What is to be gleaned from Lamp and its progeny is that: (1)
one’s “good faith” effort to notify a defendant of the institution of
a lawsuit is to be assessed on a case-by-case basis; and (2) the
thrust of all inquiry is one of whether a plaintiff engaged in a
“course of conduct” forestalling the legal machinery put in
motion by his/her filings.
In this connection, we have explained further that a “good-faith effort” may
be lacking where the delay in service is the result of the plaintiff’s neglect:
Simple neglect or mistake in failing to fulfill the responsibility
that the requirements for service are met may be sufficient to
violate the good faith standard set forth in Lamp. Rosenberg
[v. Nicholson], 408 Pa. Super. 502, 597 A.2d 145. “[I]t is not
necessary the plaintiff’s conduct be such that it constitutes some
bad faith or overt attempt to delay before the rule of Lamp will
apply.” Ferrara [v. Hoover,] 636 A.2d[, 1151] 1152 [(Pa.
Super. 1994)] (quoting Rosenberg, 408 Pa.Super. at 509-10,
- 10 -
J-S84017-16
597 A.2d at 148); see also Rosenberg, supra, 408 Pa.Super.
502, 597 A.2d 145 (holding that plaintiff’s inadvertent service at
the defendant’s incorrect address, after having received
defendant’s correct address from the post office, lacked
reasonableness and good faith); Wible v. Apanowicz, 306 Pa.
Super. 262, 452 A.2d 545 (1982) (holding that it is reasonable
to expect that a plaintiff, if he knows that process could not be
served at a given address, will employ some alternative means
to effectuate service).
Bigansky v. Thomas Jefferson Univ. Hosp., 658 A.2d 423, 433-34 (Pa.
Super.), appeal denied, 668 A.2d 1119 (Pa. 1995).
In McCreesh, 888 A.2d at 666, the Supreme Court reaffirmed its
holding in Lamp, but clarified that Lamp should be applied according to
what the Court called “the more flexible approach” exemplified by this
Court’s decision in Leidich, in which “procedurally defective service” would
be excused “where the defendant has actual notice of the commencement of
litigation and is not otherwise prejudiced.” See also id. at 674. The Court
did not otherwise disturb its prior holdings that plaintiffs are required “to
demonstrate ‘a good-faith effort to effectuate notice of commencement of
the action.’” Id. at 672, quoting Farinacci, 511 A.2d at 759.
Roytman does not contend that Cesarone had actual notice of the
commencement of the action before she was served in January 2015.6
____________________________________________
6
Roytman’s early contacts with Cesarone’s insurance company did not
provide the requisite notice. See Englert, 932 A.2d at 127 (“notice that
there was a potential for litigation . . . is not the same and cannot suffice”);
Cahill v. Schults, 643 A.2d 121, 125 (Pa. Super. 1994) (affirming dismissal
and holding that sending, by certified mail, a copy of complaint to insurer’s
lawyer did not constitute service on insured); Schriver v. Mazziotti, 638
(Footnote Continued Next Page)
- 11 -
J-S84017-16
Rather, he maintains that Lamp is distinguishable, because, unlike the
plaintiff in that case, he did not engage in misconduct to delay the litigation.
Roytman contends that Lamp “requires voluntary misconduct and an active
desire to delay the legal process” and says that he engaged in no such
misconduct here. Roytman’s Brief at 13. Roytman also argues that the trial
court erred by not acknowledging Leidich’s alleged admonition to not apply
the “good faith” rule mechanically. Id. at 13-14. We disagree.
Roytman did not file suit until just a few days before the statute of
limitations expired, and, according to the docket, made no attempt to serve
within the 30 days mandated by Rule 401(a). He did have the complaint
reinstated and tried to have it served in December 20, 2013,7 but when that
service was unsuccessful, he waited a year until reinstating the complaint
again and having the complaint served successfully. The record contains no
evidence that Roytman did anything during that intervening year to try to
_______________________
(Footnote Continued)
A.2d 224, 227 (Pa. Super. 1994) (sending insurance company’s attorney a
copy of a complaint is not a good faith effort to serve process on the
insured), abrogated on other grounds, McCreesh, 888 A.2d 664;
Ferrara v. Hoover, 636 A.2d 1151, 1153 (Pa. Super. 1994) (“We find no
merit in the contention communication between appellant and appellees’
insurance adjuster serves as a substitute for actual service of process”).
Contacting Cesarone’s insurance company did not prevent Roytman from
serving Cesarone with the complaint.
7
The trial court held that the 2013 attempt at service was ineffective
because the praecipe to reinstate the complaint that Roytman filed on
December 30, 2013 did not contain a “presentation of the original process,”
as required by Rule 401(b)(1), “and therefore was void.” Tr. Ct. Op.,
3/14/16, at 3. We need not reach this issue.
- 12 -
J-S84017-16
complete service, and Roytman offers no explanation for the delay. Notably,
the delay in service was not due to an inability to find Cesarone, who
ultimately was served at the same address as the one Roytman listed when
he initially filed the complaint 15 months earlier. Even if the delay in service
was the result of neglect, rather than voluntary misconduct on the part of
Roytman, the record still reflects a failure by Roytman to make a “good-faith
effort” to serve the complaint in a timely way. Bigansky, 658 A.2d at 433-
34.
Although Roytman complains that it was error for the trial court to
decide this issue on a preliminary objection, without a full factual record,
Roytman never identifies any material facts that would be established by
such a record that are not already apparent from the pleadings and that
could lead to a different result. In this respect, we may assume that —
contrary to the docket and other evidence in the record — Roytman really
did try unsuccessfully to serve the original complaint within 30 days (the
only fact that appears to be disputed). There remains absolutely no
explanation of why, after the complaint was reinstated and service was
unsuccessful in January 2014, Roytman waited a year before reinstating the
complaint and trying to serve it again. In his response to Cesarone’s
preliminary objection, Roytman merely cited the fact that Rule 401(b)(2)
permits reissuance of a complaint “at any time and any number of times.”
Response ¶ 14. Neither his Response nor his brief to this Court identifies
- 13 -
J-S84017-16
any facts that he would prove to justify the one-year dormancy of his
efforts.
Roytman did make a bare allegation that Cesarone was not prejudiced
by the delay. Response ¶ 17. But where, as here, the trial court finds that
the plaintiff failed to make a good-faith effort to make timely service, proof
of prejudice is unnecessary. See Englert, 932 A.2d at 125-27 & n.5
(holding that proof of lack of good-faith effort to complete service is
sufficient for dismissal). In McCreesh, a case in which the defendant had
received actual notice of the litigation through service of the complaint, the
Supreme Court held that unless there was a showing of prejudice, late
service would be excused in such cases because the actual notice “satisfied
the purpose of the statute of limitations.” 888 A.2d at 674. As noted, there
was no actual notice here, and there was a delay of a year during which
there was no effort at service at all. In this situation, no further proof is
required. See Englert, 932 A.2d at 127.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
- 14 -