J-S03014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RAYMOND RONK AND MELISSA : IN THE SUPERIOR COURT OF
BENSON : PENNSYLVANIA
:
Appellants :
:
v. :
:
JUDITH ISRAEL :
:
Appellee : No. 1099 WDA 2016
Appeal from the Order June 27, 2016
in the Court of Common Pleas of Blair County
Civil Division at No(s): 2013 GN 2650
BEFORE: OLSON, SOLANO, and STRASSBURGER*, JJ.
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED MARCH 17, 2017
Although counsel for Appellants certainly did not do everything
possible to ensure service of process, the trial court erred in granting
summary judgment in this case. Thus, I respectfully dissent and offer the
following analysis.
In McCreesh v. City of Philadelphia, 888 A.2d 664, 674 (Pa. 2005),
our Supreme Court clarified the Lamp v. Heyman, 366 A.2d 382 (Pa. 1976)
line of cases and held that it is proper “to dismiss only those claims where
plaintiffs have demonstrated an intent to stall the judicial machinery or
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S03014-17
where plaintiffs’ failure to comply with the Rules of Civil Procedure has
prejudiced defendant.” (emphasis added).
Instantly, the facts of this case do not support either conclusion.
While Appellants waited almost a full year before delivering the writ to the
sheriff for service, there is no evidence that this was done with “an intent to
stall the judicial machinery.” Id. Additionally, Appellee has not
demonstrated prejudice in this case, and she received actual notice of the
lawsuit on November 24, 2014 when she picked up the writ from the
sheriff’s office.
Moreover, this case is distinguishable from the case relied upon by the
trial court and Majority, Englert v. Fazio Mechanical Services, Inc., 932
A.2d 122 (Pa. Super. 2007). In that case, the sheriff attempted, but did not
complete service in October 2003. Counsel for Englert did not make any
effort to find out about this failed attempt until six months later, in March
2004. In the case at bar, counsel for Appellants did not demonstrate such
dilatory conduct.
Based on the foregoing, the trial court erred in granting summary
judgment.
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