Barry, M. v. Nationwide

• Court: Superior Court of Pennsylvania
• Decided: November 14, 2023
• Docket: 232 EDA 2023
• Status: Unpublished

Opinion

J-S26018-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MAMADOU BARRY AND MIRIAM : IN THE SUPERIOR COURT OF BARRY : PENNSYLVANIA : Appellants : : : v. : : : No. 232 EDA 2023 NATIONWIDE AND NATIONWIDE : MUTUAL INSURANCE COMPANY :

Appeal from the Order Entered January 5, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 220303161

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

CONCURRING MEMORANDUM BY McLAUGHLIN, J.:

FILED NOVEMBER 14, 2023

I respectfully concur. Nationwide and Nationwide Mutual Insurance

Company (“Nationwide”) filed preliminary objections (“POs”) arguing that

service was improper. Nationwide argued the civil rules allow for original

service within 30 days after commencement of suit, and as of the filing of the

POs, it had been 197 days. It therefore asked the court to dismiss the

complaint with prejudice. The relevant portion of the POs reads:

5. The Pennsylvania Rules of Civil Procedure permit the filing of preliminary objections for lack of jurisdiction and improper service of a complaint. Pa. R.C.P. 1028(a)(1).

6. Pennsylvania Rules of Civil Procedure 401(a) states that original process shall be served within the Commonwealth within thirty (30) days after the issuance of the writ or filing of the complaint. J-S26018-23

7. Pursuant to Pa. R.C.P. 402(a), service of original process may be served: (1) by handing a copy to the defendant; or (2) by handing a copy (i) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or (ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or (iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

8. Plaintiffs originally filed the Complaint against Objecting Defendant on or about March 30, 2022.

9. In accordance with Pa. R.C.P. 401(a), Plaintiff had thirty (30) days, or until April 29, 2022, to serve Objecting Defendant with the Complaint.

10. As of October 3, 2022, or one-hundred and ninety-seven (197) days later, Plaintiffs have not served Objecting Defendant with the Complaint.

11. As of October 3, 2022, Objecting Defendant is unaware of any attempt Plaintiffs have made, defective or otherwise, to perfect service of the Complaint on Objecting Defendant.

12. Thus, Plaintiffs have egregiously failed to properly serve Objecting Defendant with the Complaint filed on March 30, 2022 within the requisite time according to Pennsylvania Rules of Civil Procedure 401(a).

Nationwide’s POs at 2-3 (unpaginated); R.R. 020a-021a. Nationwide’s POs did

not mention Lamp v. Heyman, 366 A.2d 882 (Pa. 1976) or its progeny. Nor

did they allege that Appellants had not made a good faith effort at service or

claim that the statute of limitations had expired.

Appellants injected the Lamp rule into the case in their response to

Nationwide’s POs. They argued that due to an “oversight,” “the Complaint was

inadvertently not sent out for service after it was filed.” Appellants’

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Memorandum of Law in Support of Their Response in Opposition to

Defendant’s Preliminary Objections at 2 (unpaginated); R.R. 043a. They

stated that upon receipt of Nationwide’s POs, they sent the complaint for

service. Plaintiffs argued that Nationwide had not suffered prejudice because

it had notice of Plaintiffs’ UIM claims. In support, Appellants cited two cases

about the rule under Lamp v. Heyman that if a plaintiff does not make a

good faith effort to serve a complaint or writ of summons, the complaint or

writ does not toll the statute of limitations. Appellants understandably did not

allege that the statute of limitations had expired.

The trial court sustained the POs. In its Pa.R.A.P. 1925(a) opinion, it

noted the Lamp rule and observed that Appellants claimed to have served

Nationwide upon receipt of the POs. Despite its discussion of the Lamp rule,

it notably did not find that the statute of limitations had expired. Rather, the

trial court explained it had sustained the POs because there was nothing of

record showing Appellants had served Nationwide. Trial Court Opinion,

3/14/23, at 5.

The court signed the proposed order that Nationwide had included with

its POs. The order as drafted by Nationwide would have dismissed the

complaint with prejudice. However, the trial court struck out the words “with

prejudice.” An order sustaining preliminary objections without prejudice is

ordinarily interlocutory and not appealable unless the order’s practical

consequence is to put the appellant out of court. See Gordon v. Gordon, 439

A.2d 683, 686 (Pa.Super. 1981) (en banc). It thus appears that we lack

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appellate jurisdiction. The trial court did not find, and neither party contends,

that the statute of limitations has run, and a failure to serve is curable.

Assuming arguendo that our jurisdiction is proper, I would not affirm

based on the Lamp rule. The Lamp rule comes into play where a plaintiff

institutes suit, the statute of limitations then expires, and the plaintiff serves

the defendant after the statute has run. In such a situation, the initial filing

instituting suit tolls the statute of limitations if the plaintiff has made a good

faith effort at service. But Nationwide did not plead the Lamp rule or allege

that the statute of limitations had expired. It does not even argue on appeal

that the statute of limitations has expired.

I nevertheless agree that affirmance is in order because at the time the

court ruled on the POs, the record did not show that Appellants had served

Nationwide. Although Appellants included in the reproduced record a copy of

an affidavit of service attesting to service after Appellants appealed, that

document was not (and could not have been) in the record when the trial court

ruled on the POs. Indeed, it is not in the certified record now. I respectfully

concur.

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