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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARILYN RIGMAIDEN DELEON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALYSSA DESTEFANO : No. 2683 EDA 2017
Appeal from the Order Entered July 13, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): February Term, 2016 No. 4057
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, J.: FILED APRIL 30, 2019
Marilyn Rigmaiden Deleon challenges the order that granted Appellee,
Alyssa Destefano’s, motion for summary judgment in this motor vehicle
accident case. We affirm.
As recounted by the trial court:
On February 26, 2016, [Appellant] commenced a personal injury
action arising from a car accident that occurred on February 28,
2014. On April 14, 2016, [Appellant’s] process server made an
unsuccessful attempt to serve the writ. Nothing in the record
indicates that service was attempted before April 14, 2016.
On October 17, 2016, [Appellant] filed a complaint. [Appellee],
in her answer to the complaint, defended the action on the basis
that the statute of limitations had expired before original service
of process was made. On April 10, 2017, [Appellee] filed a motion
for judgment on the pleadings. She argued that [Appellant] failed
to toll the statute of limitations by not making a good faith effort
to obtain original service of process within 30 days after the filing
of the writ. The [c]ourt denied the motion and, on May 12, 2017,
[Appellee] filed a motion for summary judgment making
substantially the same argument. The [c]ourt granted
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[Appellee’s] motion for summary judgment and [Appellant] timely
appealed the [c]ourt’s decision to the Superior Court.
Trial Court Opinion, filed 6/5/18, at 1-2 (citations omitted).
Appellant filed a one-count complaint alleging negligence against
Appellee. In granting Appellee’s motion for summary judgment, the court
“dismissed the action because no good faith effort was made to timely serve
[Appellee] before the applicable statute of limitations expired.” Id., at 1.
While Appellant initiated her personal injury action by filing a praecipe for a
writ of summons on February 26, 2016, the court concluded, “[a]n attempt to
affect [sic] service was made on April 14, 2016 – nearly seven weeks after
[Appellant] filed her writ and the [two-year] statute of limitations had expired
[on February 28, 2016].” Id., at 3-4.
Moreover, there was nothing in the record to demonstrate “any effort,
good faith or otherwise, to affect [sic] service before April 14, 2016,” nor was
there “any indication that [Appellee] had actual notice of the personal injury
action against her.” Id., at 4. Accordingly, Appellant “failed to meet her
burden to show service was attempted in good faith within 30 days of filing of
the writ of summons.” Id.; see also Witherspoon v. City of Phila., 768
A.2d 1079, 1083 (Pa. 2001)(establishing that, at a minimum, a party must
evince a good-faith attempt at service of a writ “as a kind of condition
subsequent that must be fulfilled to complete the commencement of the
action”); Pa.R.C.P. 401(a)(providing that “[o]riginal process shall be served …
within thirty days after the issuance of the writ”). Appellant timely appealed
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the court’s grant of summary judgment, and this matter is now properly before
us.
Preliminarily, Appellant’s brief violates Pa.R.A.P. 2119(a), which
mandates that an “argument shall be divided into as many parts as there are
questions to be argued.” Although it contains more than one question to be
argued, Appellant’s brief features only one undivided argument section.
However, under these circumstances, this failure does not affect our ability to
address Appellant’s arguments. We therefore decline to find the issues
waived.
Appellant contends the trial court erred in granting summary judgment
for two reasons: 1) Appellant asserts she utilized good-faith efforts to serve
Appellee, but Appellee’s insurance company refused to provide Appellee’s
address; and 2) the court violated the coordinate jurisdiction rule. See
Appellant’s Brief, at 6. Specifically, as to the latter argument, Appellant
asserts that the coordinate jurisdiction rule prohibited the court from revisiting
the statute of limitations issue on summary judgment after addressing it in
the motion for judgment on the pleadings.
We review challenges to the entry of summary judgment as follows:
[We] may disturb the order of the trial court only where it is
established that the court committed an error of law or abused its
discretion. As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
states that where there is no genuine issue of material fact and
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the moving party is entitled to relief as a matter of law, summary
judgment may be entered. Where the nonmoving party bears the
burden of proof on an issue, he may not merely rely on his
pleadings or answers in order to survive summary judgment.
Failure of a non-moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of
proof establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will review the record in the light
most favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
E.R. Linde Constr. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super.
2013) (citation omitted).
Appellant first avers that the court abused its discretion by concluding
that Appellant had failed to adduce any evidence to support a finding that she
had made a good faith effort to effectuate service of the writ on Appellee
within thirty days after the writ’s issuance. It is unrefuted that: 1) February
28, 2014, is the date of the car accident alleged in Appellant’s complaint; 2)
the statute of limitations for Appellant’s cause of action, absent any kind of
tolling, ran on February 28, 2016, exactly two years after the car accident
occurred, see 42 Pa.C.S.A. § 5524(2); 3) Appellant filed her praecipe for a
writ of summons on February 26, 2016, two days prior to the expiration of the
statute of limitations; and 4) on April 14, 2016, without having reinstated the
writ, Appellant first attempted service on Appellee.
“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.” Lamp v. Heyman,
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366 A.2d 882, 889 (Pa. 1976). “The mere filing of a writ … without additional
affirmative action to effectuate timely service of process in compliance with
the applicable rules of court and local practice does not constitute good faith
efforts … and is insufficient to preserve claims” that run afoul of the statute of
limitations. Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004).
Furthermore, “it is the plaintiff’s burden to demonstrate that his efforts were
reasonable.” Id. “Determining whether a plaintiff acted in good faith is within
the sound discretion of the trial court.” McCreesh v. City of Phila., 888 A.2d
664, 672 (Pa. 2005).
However, “[w]here the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge bears a heavy burden.”
Paden v. Baker Concrete Constr., Inc., 658 A.2d 341, 343 (Pa.
1995)(citation omitted). “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 … discretion is abused.”
Id. (citation omitted).
Good faith can be demonstrated even in light of technical missteps that
violate the Rules of Civil Procedure. See id., at 674. (finding original service
of a writ, erroneously attempted via certified mail, an action done in “good
faith” as it provided the other party with actual notice of the litigation).
Nevertheless, “it is not necessary [that] the plaintiff’s conduct be such that it
constitutes some bad faith act or overt attempt to delay . . . . Simple neglect
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and mistake to fulfill the responsibility to see that requirements for service are
carried out may be sufficient” for a finding of a lack of good faith. Devine,
863 A.2d at 1168 (alteration in original)(citation omitted).
Other than Appellant’s conclusory statements indicating that a good-
faith effort was made to effectuate service of the writ, Appellant has pointed
to nothing in the record that could support her assertion. Stated differently,
there is a dearth of indicia of any action taken by Appellant between her filing
of a praecipe for a writ of summons on February 26, 2016, and her
unsuccessful attempt at service with an expired writ on April 14, 2016,
seventeen days after the expiration of the thirty-day period described in
Pa.R.C.P. 401(a). Further, there is no indication that Appellee had actual
notice of Appellant’s filing. We therefore cannot conclude the court erred or
abused its discretion in determining that Appellant had not established a good-
faith effort to effectuate service.
Appellant’s second argument suggests the grant of summary judgment
violates the coordinate jurisdiction rule. The coordinate jurisdiction rule
stands for the proposition that “[o]rdinarily, a trial judge should not place
himself in the position to overrule a decision by another judge of the same
court in the same case.” Salerno v. Phila. Newspapers, Inc., 546 A.2d
1168, 1170 (Pa. Super. 1988). Appellant relies on Commonwealth v. Starr,
664 A.2d 1326, 1331 (Pa. 1995), and Baker v. Morjon, Inc., 574 A.2d 676,
677 (Pa. Super. 1990).
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“Where the motions differ in kind, as preliminary objections differ from
motions for judgment on the pleadings, which differ from motions for
summary judgment, a judge ruling on a later motion is not precluded from
granting relief although another judge has denied an earlier motion.” Goldey
v. Trustees of the Univ. of Pa., 675 A.2d 264, 267 (Pa. 1996). Conversely,
the Goldey decision establishes that “a later motion should not be entertained
or granted when a motion of the same kind has previously been denied, unless
intervening changes in the facts or the law clearly warrant a new look at the
question.” Id. (emphasis in original). Here, common legal questions
permeated both Appellee’s motion for judgment on the pleadings and motion
for summary judgment. However, the court was presented with Appellant’s
failure to produce any evidence of record to establish good-faith efforts.
Conversely, when addressing the motion for judgment on the pleadings, the
court was only able to review the pleadings of the parties. This distinction is
sufficient to establish that the motions were of a different kind. The trial court
did not violate the coordinate jurisdiction rule.
Accordingly, as we discern no error in the trial court’s conclusions and
find no fault with the trial court’s disparate treatment of Appellee’s motion for
judgment on the pleadings and motion for summary judgment, we affirm the
trial court’s order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/19
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