Sharp, L. v. Philhaven

• Court: Superior Court of Pennsylvania
• Decided: November 14, 2017
• Docket: 1041 EDA 2017
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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