Kathleen, J. v. Sugarhouse Casino

• Court: Superior Court of Pennsylvania
• Decided: September 2, 2021
• Docket: 1565 EDA 2020
• Status: Unpublished

Opinion

J-S06002-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES FOSTER AND KATHLEEN : IN THE SUPERIOR COURT OF FOSTER, H/W : PENNSYLVANIA : Appellants : : : v. : : : No. 1565 EDA 2020 SUGARHOUSE CASINO AND : SUGARHOUSE HSP GAMING, L.P. :

Appellees

Appeal from the Order Entered July 24, 2020 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 190804702

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: Filed: September 2, 2021

James Foster was injured after he fell while patronizing the Sugarhouse

Casino. He and his wife, Kathleen Foster (collectively “the Fosters”) filed a

Writ of Summons, and then later a Complaint, well within the applicable

statute of limitations. These were properly served on the Sugarhouse Casino

and Sugarhouse HSP, L.P. (hereinafter collectively “Sugarhouse”). That action

was withdrawn without prejudice.

The Fosters re-filed a complaint on August 29, 2019. The re-filed

complaint was reinstated by praecipe on September 30, October 31, and

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* Retired Senior Judge assigned to the Superior Court. J-S06002-21

December 2, 2019. The trial court subsequently dismissed the Fosters’ re-filed

complaint with prejudice after Sugarhouse filed preliminary objections

asserting that the Fosters had failed to timely serve the re-filed complaint. On

appeal, the Fosters contend that the court erred as Sugarhouse suffered no

prejudice and had actual notice of the claims from the earlier filed complaint.

We conclude that the trial court did not err in finding Sugarhouse did not have

actual notice. Further, we conclude that under Gussom v. Teagle, 247 A.3d

1046 (Pa. 2021), we need not address the Fosters’ claim that the court abused

its discretion in finding that Sugarhouse suffered prejudice from the untimely

service. We therefore affirm.

The Fosters’ August 29, 2019 amended complaint was filed less than a

week before the expiration of the limitations period on September 2, 2019.

The Fosters concede that they neglected to serve Sugarhouse until November

30, 2019. Sugarhouse filed preliminary objections arguing the failure of the

Fosters to provide them with notice of the new lawsuit required dismissal of

the action under Lamp v. Heyman, 366 A.2d 882 (Pa. 1976). The trial court

granted Sugarhouse’s preliminary objections dismissing the action with

prejudice, concluding the Fosters failed to make a good faith effort to

effectuate service. The Fosters responded with this timely appeal.

When reviewing an order sustaining preliminary objections, our

standard of review is de novo and our scope of review is plenary. See

Trexler v. McDonald's Corp., 118 A.3d 408, 412 (Pa. Super. 2015).

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Therefore, this Court must determine whether the trial court erred as a matter

of law. See id.

Furthermore, “[t]his Court will reverse the trial court's decision

regarding preliminary objections only where there has been an error of law or

abuse of discretion.” Excavation Techs., Inc. v. Columbia Gas Co. of

Pennsylvania, 936 A.2d 111, 113 (Pa. Super. 2007). “When sustaining the

trial court's ruling will result in the denial of claim or a dismissal of suit,

preliminary objections will be sustained only where the case [is] free and clear

of doubt.” Id.

“Service of process is a mechanism by which a court obtains jurisdiction

of a defendant, and therefore, the rules concerning service of process must

be strictly followed.” Trexler, 118 A.3d at 412 (quoting Cintas Corp. v.

Lee’s Cleaning Servs., 700 A.2d 915, 917 (Pa. 1997)). “Without valid

service, a court lacks personal jurisdiction of a defendant and is powerless to

enter judgment against him or her. Thus, improper service is not merely a

procedural defect that can be ignored when a defendant subsequently learns

of the action against him or her.” Cintas, 700 A.2d at 917-18. Pennsylvania

Rules of Civil Procedure 1028 allows a defendant to file a preliminary objection

on the basis that the plaintiff did not properly serve the complaint. See

Pa.R.C.P. 1028(a)(1).

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On appeal, the Fosters first argue that the trial court erred in sustaining

Sugarhouse’s preliminary objections because Sugarhouse had actual notice of

the new lawsuit. The Fosters assert that the new complaint contained the

same nucleus of operative facts and claims as the original lawsuit. The Fosters

therefore claim the court erred in dismissing their new complaint with

prejudice.

The purpose of the statute of limitations is to discourage delay and the

presentation of stale claims that may prejudice the defense of such claims.

See McCreesh v. City of Philadelphia, 888 A.2d 664, 674 (Pa. 2005). The

statute of limitations period for personal injury claims is two years. See 42

Pa.C.S.A. § 5524(2). Additionally, Pennsylvania Rule of Civil Procedure 401(a)

requires plaintiffs to serve process within thirty days after the issuance of a

writ or the filing of a complaint. See Pa.R.C.P. 401(a). Rule 401(b)(2) permits

plaintiffs to reinstate a complaint in thirty-day increments. See Pa.R.C.P.

401(b)(2). If the plaintiff reinstates a Complaint, the statute of limitations

period will toll only if the plaintiff makes a good faith effort to effectuate notice

of commencement of the action to the defendant. See Lamp, 366 A.2d at

889.

A complaint is effective to commence an action and operates to toll the

applicable statute of limitations. However, the plaintiff must refrain from a

course of conduct of having the complaint repeatedly reinstated without

serving the defendant within 30 days of the reinstatement:

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“In the seminal case of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), this Court sought to end abuses of process by plaintiffs who tolled the statute of limitations by filing a writ of summons, had the writ repeatedly reissued, and deliberately failed to notify the defendant of the pending litigation.” McCreesh v. City of Philadelphia, 585 Pa. 211, 888 A.2d 664, 665 (2005). “This process, while technically compliant with the Rules of Civil Procedure, nonetheless defeated the purpose of the statute of limitations, which is to protect defendants from stale claims.” Id. Thus, in Lamp, this Court held that “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, 366 A.2d at 889. This “Lamp rule” applies equally to actions commenced by way of the filing of a complaint.

We refined the Lamp rule in Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757, 759 (1986), holding that “Lamp requires of plaintiffs a good-faith effort to effectuate notice of commencement of the action.” In addition, Farinacci clarified that: (1) the plaintiff carries an evidentiary burden of proving that she made a good- faith effort to ensure that notice of the commencement of an action was served on the defendant, McCreesh, 888 A.2d at 672; and (2) “[i]n each case, where noncompliance with Lamp is alleged, the [trial] court must determine in its sound discretion whether a good-faith effort to effectuate notice was made[,]” Farinacci, 511 A.2d at 759.

This Court's most recent decision in the Lamp-line of cases is McCreesh, supra. In McCreesh, the Court expressed that when plaintiffs’ improper actions in serving original process put defendants on actual notice of the commencement of actions, trial courts should “dismiss only those claims where plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs’ failure to comply with the Rules of Civil Procedure has prejudiced defendant.” McCreesh, 888 A.2d at 674.

Gussom, 247 A.3d at 1048.

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Moreover, this Court has determined that “[w]hat constitutes a ‘good

faith’ effort to serve legal process is a matter to be assessed on a case by case

basis.” Moses v. T.N.T. Red Star Exp., 725 A.2d 792, 96 (Pa. Super. 1999).

“The inquiry into whether a plaintiff acted in good faith lies within the sound

discretion of the trial court.” Englert v. Fazio Mech. Servs., Inc., 932 A.2d

122, 125 (Pa. Super. 2007) (citation and quotations omitted).

A plaintiff may demonstrate a good faith effort even though they have

made a technical misstep that violates the Rules of Civil Procedure. See

Gussom, 247 A.3d at 1056. However, a plaintiff must still act diligently to

serve notice on the defendant so as not to undermine the policies underlying

the statute of limitations. “Although there is no mechanical approach to be

applied in determining what constitutes a good faith effort, it is the plaintiff’s

burden to demonstrate that his efforts [to effectuate service] were

reasonable.” See Englert, 932 A.2d at 124-25. “If a plaintiff presents credible

evidence that she made this attempt at service, then she fulfills her

requirement to prove good faith.” Gussom, 247 A.3d at 1057.

If the plaintiff fails to establish a good faith effort at service, then she

may still evade dismissal of her complaint if she can establish that the

defendant had actual notice of the action; she must not have acted

intentionally to stall the litigation process; and the defendant suffered no

prejudice from the lack of formal service before the limitations period ended.

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See Gussom, 247 A.3d at 1056-1057. The exact language utilized by our

Supreme Court is that:

[Pursuant] to McCreesh, a trial court should not punish a plaintiff by dismissing her complaint where she is able to establish that her improper but diligent attempts at service resulted in the defendant receiving actual notice of the commencement of the action, unless the plaintiff's failure to serve process properly evinced an intent to stall the judicial machinery or otherwise prejudiced the defendant.

Gussom, 247 A.3d at 1058. We need not reach this last issue here, as we

conclude the trial court did not err in finding that Sugarhouse did not have

actual notice of the amended complaint.

Here, the Fosters concede that, “through the inadvertence of counsel,”

they did not serve amended complaint on Sugarhouse until nearly 90 days

after the expiration of the statute of limitations. See Appellants’ Brief, at 9.1

Despite this, they contend the trial court erred in dismissing their complaint

with prejudice. See id. at 10 (“[The Fosters] would ask this Court to avoid the

draconian action of dismissing a Complaint with Prejudice...”). In pursuit of

1 While the Fosters make boilerplate allegations that they made a good-faith

effort to serve the amended complaint, neither of their listed issues on appeal challenge the trial court’s finding that they did not. Rather, their arguments focus on whether Sugarhouse had actual notice and whether Sugarhouse suffered any prejudice from the late service of the amended complaint. To the extent the Fosters attempt to raise a challenge to the trial court’s finding that they did not make a good faith effort at service, we find they have waived it by failing to meaningfully develop it.

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this contention, the Fosters present two arguments. As noted previously,

however, we need only reach the first.

The Fosters claim the trial court erred in concluding that Sugarhouse did

not have actual notice of the action. They assert that Sugarhouse defendants

“were well aware of the fact that [the Fosters] intended to pursue litigation

against them and that [Sugarhouse defendants] were notified well within the

Statute of Limitations.” Appellants’ Brief, at 10. The Fosters highlight that their

previous complaint in this matter had been dismissed without prejudice after

the parties had engaged in limited discovery. The Fosters argue that under

these circumstances, Sugarhouse had actual notice of the claims contained in

the amended complaint.

While we can find no precedent directly dealing with the present

circumstances, we note that when a voluntary nonsuit is entered, "the general

effect ... is to terminate the action without an adjudication of the merits and

to place the plaintiff in the same position as if the action had never been

instituted.” Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474,

476 (Pa. Super. 2014) (citation omitted). Consequently, a second complaint on

the same facts “is considered a new action and not a continuation of the initial

action.” Levitt v. Patrick, 976 A.2d 581, 588 (Pa. Super. 2009) (citation

omitted).

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The Fosters make no attempt to distinguish between a voluntary nonsuit

and a dismissal without prejudice to re-file. Further, we see no reason to do

so. A dismissal is a dismissal. The Sugarhouse defendants were entitled to

assume the matter had been resolved unless they received notice otherwise.

As a result, the relevant question is whether Sugarhouse had actual

notice of the amended complaint. Pure logic dictates that Sugarhouse could

not have actual notice of a complaint that did not yet exist until August 29,

2019. And the Fosters do not argue that Sugarhouse had actual notice of the

amended complaint until November 30, 2019. Accordingly, we conclude the

trial court did not err in finding that Sugarhouse did not have actual notice.

Given this conclusion, we need not reach the Fosters second issue on

appeal, where they challenge the trial court’s conclusion that Sugarhouse

suffered prejudice from the untimely service of the amended complaint. We

therefore affirm the order sustaining Sugarhouse’s preliminary objections and

dismissing the Fosters’ amended complaint with prejudice.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/2/21

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