J-A25024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LINDSEY SHARP : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PHILHAVEN : No. 1041 EDA 2017
Appeal from the Order Entered March 8, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 160300123
BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 14, 2017
Appellant Lindsey Sharp appeals from the order of the Court of Common
Pleas of Philadelphia County granting Appellee Philhaven’s preliminary
objection and transferring venue to Lebanon County. We affirm.
On August 30, 2016, Appellant Sharp filed her complaint in Philadelphia
County, alleging claims of gender, religious, and retaliatory discrimination
against her employer, Appellee Philhaven, a corporation that provides mental
health treatment. The parties agree that Appellant’s cause of action arose out
of her employment at Appellee’s office in Lebanon County and do not dispute
that Appellee’s registered office and principal place of business are both
located in Lebanon County.
On November 28, 2016, Appellee filed a preliminary objection to the
complaint on the basis of improper venue. On December 22, 2016, the trial
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A25024-17
court issued a Rule to Show Cause as to why Appellee’s preliminary objection
should not be granted. The order also scheduled a hearing to allow the parties
to submit affidavits and deposition evidence with respect to the preliminary
objection. Thereafter, the trial court directed the parties to submit
supplemental briefs. On February 1, 2017, Appellant filed a supplemental
brief, arguing that Appellee’s preliminary objection was untimely, and thus,
waived.
After reviewing the pleadings, briefs, and oral argument, the trial court
entered an order on March 8, 2017, sustaining Appellee’s preliminary
objection and transferring the case to Lebanon County. On March 17, 2017,
Appellant filed this timely appeal. The trial court did not direct Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). On June 1, 2017, the trial court filed an opinion, setting
forth its rationale for sustaining the preliminary objection on the basis that
venue was improper in Philadelphia County.
Appellant’s sole claim on appeal is that the trial court erred in
considering Appellee’s untimely preliminary objection. Pennsylvania Rule of
Civil Procedure 1026 provides that “every pleading subsequent to the
complaint shall be filed within twenty days after service of the preceding
pleading, but no pleading need be filed unless the preceding pleading contains
a notice to defend or is endorsed with a notice to plead.” Pa.R.C.P. 1026. As
Appellant filed her complaint on August 30, 2016, Appellee was required to
file its preliminary objection by September 19, 2016, but it failed to do so until
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November 28, 2016. Thus, we agree that the preliminary objection was
untimely filed.
However, our courts have determined that Rule 1026 “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.” Liberty Mut. Ins. Co. v. Domtar Paper Co., 77 A.3d
1282, 1285–86 (Pa.Super. 2013), affirmed, 631 Pa. 463, 113 A.3d 1230
(2015) (quoting Peters Creek Sanitary Authority v. Welch, 545 Pa. 309,
681 A.2d 167, 170 (1996) (internal quotation marks and citation omitted)).
Although Appellant argues that Appellee’s preliminary objection should
have been found waived, she made no averments in the lower court or in her
appellate brief to suggest that she was prejudiced by the delay. The opposing
party to a preliminary objection is required to demonstrate prejudice from the
fact that the “allegations are offered late rather than on time, and not such
prejudice as results from the fact that the 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). As such, we decline to disturb the trial
court’s discretion in deciding to review Appellee’s untimely preliminary
objection.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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Sharp, L. v. Philhaven
Combined Opinion