Trial Court Requests Superior Court to Affirm Dismissal of Case Based on Plaintiff's Failure to Complete Service in a Good Faith and Timely Fashion

In the case of Vargas v. United Modular Enterprises, LLC, No. 2022-CV-05051 (C.P. Bucks Co. April 7, 2025 McMaster, J.), the court issued a Rule 1925 Opinion requesting the appellate court to affirm the trial court’s sustaining of the Defendant’s Preliminary Objections and dismissal of the Plaintiff’s Complaint with prejudice on the basis of the expiration of the statute of limitations and the Plaintiff’s failure to complete service in a timely and good faith fashion.

According to the Opinion, this case involved a tractor trailer that allegedly collided with the Plaintiff’s vehicle. The accident occurred on February 20, 2019.

Although the Plaintiff filed an original Complaint on February 12, 2021, which was eight (8) days before the statute of limitations expired, the court ruled that the Plaintiff ultimately did not make a good faith effort to complete service.

The court noted that the record confirmed that the Plaintiff’s attorney did not give the Complaint to the Bucks County Sheriff and serve the Complaint on the Defendant’s until July 14, 2021, which was five (5) months after the statue of limitations had expired.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (July 17, 2025).

Superior Rejects Prothonotary's Rejection of a Writ of Summons That Had an Electric Signature

In the case of Scheibe v. Woodloch Resort, No. 1478 EDA 2024 (Pa. Super. May 20, 2025 Stabile, J., McLaughlin, J., and Lane, J.) (Op. by Lane, J.), the appellate court vacated a Pike County trial court’s Order granting a Motion for Judgment on the Pleadings in favor of the Defendant.  In the lower court proceedings, the trial court had dismissed the action with prejudice based upon the filing of a Praecipe for the Writ of Summons beyond the statute of limitations.

In this case, the Pennsylvania Superior Court noted that the Complaint was timely filed where the Prothonotary’s office acknowledged receipt of the Complaint on the last day of the limitations period.  The appellate court also noted that the Prothonotary lacked the authority to refuse to docket that Complaint based upon a non-compliance with local rules of court where the Complaint otherwise met the requirements of the Pennsylvania Rules of Civil Procedure.

This case involved allegations that the Plaintiff was injured while attempting to use an inflatable water slide erected for guests use at the Woodloch Resort.

Six (6) days before the expiration of the applicable two year statute of limitations, the Plaintiff’s attorney mailed an electronically signed copy of a Praecipe For Writ of Summons through one day delivery by the Postal Service to the Prothonotary’s office. The USPS tracking information indicated the Praecipe was delivered the following day. However, the Prothonotary’s office did not docket the Praecipe for the rest of the week.

Rather, a clerk from the Prothonotary’s office contacted the Plaintiff’s counsel on the last date of the limitations period to advise that the Praecipe would not be docketed because it had an electronic signature in violation of the local rules that required original signatures.

Plaintiff’s counsel then prepared a hand-signed Praecipe that was delivered overnight and docketed the day after the statute of limitations had expired.

The Defendants’ moved for judgment on the pleadings under an allegations that the suit was not filed within the statute of limitations. 

The trial court granted the motion based upon a strict application of the statute of limitations. The trial court noted that it did not hold any oversight over the policies and procedures of the Prothonotary’s office.  The trial court found that the properly filed Praecipe was not docketed until after the statute of limitations had expired.

The Superior Court reversed.  The appellate court first confirmed that there was no requirement in the Rules of Civil Procedure for a Praecipe to be hand-signed by a party or their attorney, as the rules contemplated that a “signature” could include a computer-generated signature.

The Superior Court additionally held that, under the rules, documents mailed to the Prothonotary’s office were deemed to be filed when received by that office as a litigant would have no control over when that office would stamp and process the filing.

The Superior Court additionally confirmed that the Pennsylvania Rules of Civil Procedure expressly prohibited the rejection of a filing that complied with those Rules of Civil Procedure where that filing did not meet the requirements of a local rule.

The Superior Court also found that the Prothonotary has no discretion to reject documents due to defects, as such authority lays with the trial court.

Accordingly, the Superior Court agreed that the Complaint was timely filed. The rationale of the Superior Court was that the Prothonotary had acknowledged that it had received the filing prior to the expiration of the statute of limitations.  The Court reierated that the Prothonotary had no discretion to refuse to docket the Praecipe as it complied with the requirements of the Pennsylvania Rules of Civil Procedure.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer State Appellate Case Alert” on www.Law.com (June 3, 2025).

Case Dismissed Due To Lack of Timely Service of Process

In the case of Trinkle v. Herndon, No. 8078-CV-2023 (C.P. Monroe Co. March 25, 2025 Zulick, J.), the court sustained a Defendant’s Preliminary Objections regarding the Plaintiff’s failure to promptly serve a Writ of Summons in a motor vehicle accident case and thereby dismiss the case.

According to the Opinion, following the subject motor vehicle accident that occurred on December 3, 2021, the Plaintiff filed a lawsuit on December 4, 2023.

The Monroe County Sheriff issued an Affidavit of Return showing that no personal service was made on the Defendant at his/her last known address, which service was attempted on December 28, 2023.

There was then no further docket activity until May 8, 2024 when the Court ordered the Plaintiff to file for special service on or before August 6, 2024 because the docket did not reflect an affidavit of successful service of process.

On September 10, 2024, the Plaintiff’s attorney filed a Praecipe to Reissue the Writ of Summons. The Defendant was served thereafter on September 24, 2024.

The Plaintiff then filed a Complaint on January 14, 2025. The Defendant responded with Preliminary Objections seeking to dismiss the action due to the statute of limitations.

In his Opinion, Judge Zulick provided a detailed review of the law of the statute of limitations and the law regarding proper and prompt service of original process.

The Court noted that the Plaintiff had filed a Writ of Summons on the day that the statute of limitations were set to expire on the end of that day. Looking at the record before it, the Court found that date Plaintiff had failed to demonstrate that a good faith effort was made to complete service.

Plaintiff’s counsel pointed to the fact that he was out of the office for a period of time during 2024 due to medical issues and he also sited an error made by his office staff who thought that the Sheriff’s Affidavit filed on December 28, 2023 showed that service had been completed.

The Court noted that, despite these statements, the Plaintiff was put on notice by the Court’s Case Management Order of May 8, 2024 which specifically advised that service was not complete. That Order also directed the Plaintiff to complete service or file a Motion for Special Service by August 6, 2024. According to the Opinion, the Plaintiff did not comply with those Orders and, as such, the Court found that the Plaintiff failed to prove that the Plaintiff acted diligently in attempting to complete service on the Defendant with notice of the lawsuit.

Consequently, the Court ruled that the case must be dismissed due to the bar of the statute of limitations.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 14, 2025).

Source of image:  Photo by Pavel Danilyuk on www.pexels.com.

Any Way You Slice It, New Causes of Action Cannot Be Stated Via Amendment to Complaint After Expiration of Statute of Limitations

In the case of Slice, Slice Baby, LLC v. Armetta, No. 2019-CV-153 (C.P. Lacka. Co. Nov. 8, 2024, Nealon, J.), the court addressed various issues in a case involving a dispute over issues regarding a lease agreement involving a pizza restaurant.

Among the issues addressed by the court was whether a Plaintiff may secure leave of court to amend the Complaint to assert new causes of action after the statute of limitations on the claims presented have expired.

In this case, the Plaintiff filed a motion seeking leave of court to amend the Complaint to assert five new causes of action and to include four additional Defendants.

Judge Nealon reviewed the case and the applicable statute of limitations and ruled that the limitations period had expired on four of the five new claims and, as such, those claims were not permitted. The court did allow the Plaintiff to assert a new cause of action for breach of the implied covenant of good faith and fair dealing against one additional Defendant.

Relative to the Defendant’s Motion for a Judgment of Non Pros based upon the Plaintiff’s failure to litigate this action with reasonable promptitude, after reviewing the record before him, Judge Nealon noted that the Defendant had not identified any prejudice that the Defendant had suffered as a result of the Plaintiff’s lack of reasonable diligence in pushing this litigation ahead. As such, the Defendant’s Motion for Judgment for Non Pros was denied.

Anyone wishing to review a copy of this decision may click this LINK.

Trial Court Addresses Joinder of Additional Defendants in a Medical Malpractice Case

In the case of Gilbert v. UMPC Williamsport, No. CV-21-00,169 (C.P. Lyc. Co. Sept. 16, 2024 Lindhardt, J.), the court overruled Preliminary Objections filed by Additional Defendants relative to their joinder into this medical malpractice matter.

In so ruling, the court noted that, in this case involving alleged improper and negligent pre- and post-natal treatment to the Plaintiff and her child, the joinder of the Additional Defendants would be allowed where the statutes of limitations on the claims presented would not expire until several years in the future and, some of which, had not yet begun to run.

The court also noted that allowing the joinder to proceed would be the most sensible approach on the case presented in terms of judicial economy and other interests.

The court additionally found that the allegations in the Joinder Complaint were sufficiently clear to enable the Additional Defendants to prepare their defenses.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert. www.Law.com (Oct. 30, 2024).

Case Dismissed For Lack of Activity Where Plaintiff Did Not Document Any Steps To Complete Service

In the case of Villacreses v. Kalahari Resorts, No. 4259-CV-2023 (C.P. Monroe Co. April 17, 2024 Zulick, J.), the court granted the Defendants’ Preliminary Objections against the Plaintiff’s failure to timely serve original process and also due to the fact that the statute of limitations had expired.

According to the Opinion, the case involved a slip and fall that occurred on August 1, 2021.

The Complaint was filed on July 12, 2023 but was not served on the Defendants with in the thirty (30) days required by Pa. R.C.P. 401(a).

Approximately three (3) months later on October 11, 2023, the Complaint was reinstated. The reinstated Complaint was served on the Defendants on October 23, 2023 and on another set of Defendants on November 1, 2023. The Defendants then filed the Preliminary Objections at issue.

In its decision, the court noted that, in the Plaintiff’s Response to the Preliminary Objections, the Plaintiff did not provide any further information about her efforts to obtain service. Nor did the Plaintiff request a hearing to present evidence on her efforts to make service. Nor did the Plaintiffs submit any documentary evidence or depositions on the issue.

Although the Plaintiffs asserted in their response that they did make efforts, the court noted that the court’s docket did not reflect any action on the Plaintiffs’ part from the date of the filing of the Complaint in July of 2023 until a Praecipe to Reinstate was filed in October of 2023, three months later.

Judge Zulick noted that, based upon the recent Supreme Court precedent, including the Gussom decision, where the evidentiary burden is placed upon the Plaintiff to show a good faith effort to complete service and where the law states that “proof” is required, the Plaintiff cannot rely upon a docket that shows no activity or a response to Preliminary Objections that does not detail any good faith effort to complete service.  Judge Zulick also noted that a Plaintiff cannot rely upon statements in a Brief in opposition to the Preliminary Objections. 

The court noted that, in this case, similar to the facts in the Gussom case, an attempt at service was timely made by the Sheriff, but the Plaintiff allowed 3 ½ months to then go by from that point with no further activity.

Judge Zulick reiterated that the Supreme Court made clear in Gussom that a Plaintiff’s attorney must make a record of the good faith attempts that have been completed to obtain service.  Given that no such record was created in this matter, the court sustained the Preliminary Objections based upon a lack of timely service and dismissed the Complaint.

Anyone wishing to review a copy of this decision may click this LINK.

Trial Court Requests Superior Court to Affirm Rulings in Medical Malpractice Action

In the case of Jordan v. Lynde, No. 2021-CV-02616 (C.P. Bucks Co. March 12, 2024 Trauger, J.), the court issued a Rule 1925 Opinion to the Superior Court requesting that the Superior Court affirm the trial court’s entry of summary judgment in favor of the Defendant medical providers in this medical malpractice action.

The court concluded that its Order dismissing the case should be affirmed where the Plaintiffs failed to present any expert testimony to establish that the care provided by the Defendants deviated from acceptable medical standards.

The court also found that, in this case where the Plaintiffs filed their lawsuit two (2) years and two (2) months after the event which gave rise to the claim, the Plaintiffs’ claims were barred by the statute of limitations and not saved by any reference to the discovery rule.

Anyone wishing to review a copy of this decision may click this LINK.


Source “The Legal Intelligencer Common Pleas Case Alert,” ww.law.com (June 19, 2024).

 

Federal Court Strikes Affirmative Defenses Having No Basis in Fact

In the case of DeSandies v. Encore Group (YSA), LLC, No. 2:24-CV-01044-JDW (E.D. Pa. April 19, 2024 Wolson, J.), the court addressed affirmative defenses filed by a Defendant in a federal court matter and determined that a Rule 11 sanction was appropriate given that certain defenses asserted by a defense counsel were not supported by the facts of the case.

According to the Opinion, the Defendant filed an Answer that included an affirmative defense relative to an allegation regarding the statute of limitations which the court deemed to be invalid on its face on the basis of the pleadings of the parties. 

After the Defendant chose not to amend but instead defend its Answer and Affirmative Defenses, the court rejected the defense position and imposed a Rule 11 sanction, striking all of the Defendant’s affirmative defenses from its Answer but otherwise allowing the defense the ability to seek leave of court to amend its affirmative defenses for which the defense had a good faith basis.

This case arose out of allegations under the American for Disability Act. The Defendant’s Answer included ten (10) affirmative defenses, one of which was a statute of limitations defense.

The court reviewed the pleadings and concluded that the assertion of a statute of limitations defense was merely a prophylactic allegation rather than being validly based upon some claim by Plaintiff that was barred by the statute of limitations.

The court ordered the Defendant to either file an Amended Answer in which it would only assert those defenses for which it had a good faith basis or to otherwise file a Memorandum explaining why its Answer should be not stricken as in violation of F.R.C.P. 11(b).  As noted, the Defendant elected to defend its Answer rather than amend.

Thereafter, the court concluded that the Defendant’s affirmative defense on the statute of limitations was patently unmeritorious or frivolous and thereby warranted the imposition of sanctions.

The Defendant claimed that discovery could later support the defense of the statute of limitations that the Defendant therefore desired to preserve its defense in its pleadings.

The court rejected that reasoning, observing that Rule 11 does not countenance the assertion of affirmative defense based on what another party might assert in the future, either as to claims or testimony.

The court stated that, if the Defendant concluded that the Plaintiff eventually took some action that changed the scope of the claim presented, then the Defendant’s remedy would be to seek leave of court to amend its Answer to assert a new affirmative defense at that later date. The court otherwise reaffirmed its decision that it was not an option to assert affirmative defenses initially in a prophylactic fashion with no factual basis for doing so.

In the end, the court determined that the improper assertion of the affirmative defenses warranted the imposition of sanctions because such practice unnecessarily expand discovery and made it more difficult to resolve cases. Judge Wolson also noted that, just as a Plaintiff was not entitled to assert claims that lacked any basis, a Defendant may not assert affirmative defenses that lacked any basis.

The court deemed that the appropriate sanction would be to strike all of the Defendant’s asserted affirmative defenses, without prejudice to the Defendant’s ability to seek leave court to amend its Answer to include affirmative defenses for which the defense had a good faith basis.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: Law.com: “The Legal Intelligencer Federal Case Alert” (May 16, 2024).

Judgment on the Pleadings Granted Based on Expiration of Statute of Limitations

In the case of Leventry v. Vrabel, No. 23-CV-3022 (C.P. Cambria Co. May 13, 2024 en banc), the court granted a Defendant’s Motion for Judgment on the Pleadings in a fall down case.

According to the Opinion, the Plaintiff was cutting a tree branch on the Defendant’s property when he fell approximately thirty (30) feet from a ladder. The Plaintiff alleged that his injuries were caused by negligence by the Defendant.

After the pleadings were closed, the Defendant filed a Motion for Judgment on the Pleadings arguing that the applicable two (2) year statute of limitations had expired and that the Plaintiff’s claim was thereby time barred.

According to the record before the court, it was undisputed that the Plaintiff missed the deadline set by the statute of limitations for a personal injury claim based on negligence by one (1) day.

Plaintiff’s counsel noted that the delay was the result of mailing out the Complaint to Cambria County Prothonotary too close to the deadline.

Given that the Plaintiff did not file the lawsuit within the statue of limitations, the court granted the Motion for Judgment on the Pleadings.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Michael T. Della Vecchia of the Law Office of Mezzanote, Hasson & Sichok for bringing this decision to my attention.

Pennsylvania Supreme Court's Latest Pronouncement on Service of Process Issues (And Another Great Dissenting Opinion by Justice Wecht)

In the case of Ferraro v. Patterson-Erie, No. 1 WAP 2023 (Pa. April 25, 2024) (Op. by Donohue, J.), the court addressed a statute of limitations argument related to service of process issues in a slip and fall case.

According to the Opinion, the Plaintiff slipped and fell at a Burger King and, thereafter, filed a negligence lawsuit against the operators of the restaurant.

The Plaintiff filed her Complaint within the two (2) year statute of limitations.

However, the Plaintiff encountered difficulties with serving the Complaint on the Defendants due to issues with the Sheriff’s service and the COVID-19 pandemic.

The Plaintiff eventually served the Complaint through a private process server. She later reinstated the Complaint and then served it through the Sheriff.  However, this service by the Sheriff occurred after the statute of limitations had elapsed.

The Defendants argued that the action was barred by the statute of limitations because the Plaintiff did not make a good faith effort to serve them in a timely manner.

The trial court had denied the Defendants’ Motion for Judgment on the Pleadings in this regard. The Superior Court affirmed the trial court’s decision.

On appeal to the Pennsylvania Supreme Court, the decision of the Superior Court was reversed.

The Pennsylvania Supreme Court held that the Plaintiff failed to meet her burden of demonstrating that she made a good faith effort in diligently and timely serving process on the Defendants.

Accordingly, the Supreme Court found that the Defendants’ informal receipt of actual notice was irrelevant.

The court emphasized that the Plaintiffs are not permitted to opt out of the Rules of Civil Procedure regarding service in order to give notice of the commencement of a lawsuit by way of informal means. The court noted that, if attempts at service of process were viewed as optional for giving such notice of the filing of a lawsuit, then no Plaintiff would be required to rely upon the Pennsylvania Rules of Civil Procedure to complete service of process in a proper manner.

Anyone wishing to review a copy of this decision may click this LINK.  

The Dissenting Opinion by Justice Wecht, in which Justice Mundy joined, can be viewed HERE.  Justice Wecht's Dissenting Opinion provides an excellent and thorough overview of the jurisprudence in Pennsylvania on the service of process law.  Justice Wecht also proposes ways to provide clarity on this area of law going forward.


Source: Justia.com Daily Opinions Summaries (April 26, 2024).

Claims of Direct Liability To Plaintiff Asserted in a Joinder Complaint Found to be Barred by the Statute of Limitations

In the case of Brown-Papp v. Phillips, No. 2017-CV-0210 (C.P. Bradford Co. Mach 28, 2024 Beirne, P.J.), the court, following a jury trial, granted an Additional Defendant’s Motion to Vacate/Dismiss the Joinder Complaint filed against the Additional Defendant in a motor vehicle accident case based upon a finding that any effort by the joining party to assert direct claims against the Additional Defendant relative to the Plaintiff's personal injury claims were barred by the applicable statute of limitations.

According to the Opinion, this case arose out a motor vehicle accident. The Plaintiff sued a defendant driver and a UIM carrier. The UIM carrier brought in a second driver allegedly involved in accident as an Additional Defendant in order to assert the credit for the liability insurance limits of that Additional Defendant.

The case proceeded through trial and, during the trial, the Additional Defendant preserved the statute of limitations arguments by way of a pre-trial motion, a Motion for a Nonsuit, and a Motion for a Directed Verdict. The trial court took all of those motions under advisement for a later decision and did not decide them during the course of the trial. 

The jury then entered a verdict finding each Defendant driver to be 50% responsible for the happening of the accident.

In a post-trial motion, the Additional Defendant reiterated the Motion to Vacate/Dismiss any effort by the Plaintiff to recover against the Additional Defendant under a statue of limitations argument. The Additional Defendant asserted that the Plaintiff never filed any direct claim against the Additional Defendant. Moreover, it was established that the UIM carrier had not brought the Additional Defendant into the case until after the statute of limitations had expired. 

In this decision, the court granted the Additional Defendant’s Motion to Vacate/Dismiss on the basis of the application of the statute of limitations.

Anyone wishing to review a copy of this decision may click this LINK.

Continuing Violations Doctrine Does Not Save Civil Rights Claim From Statute of Limitations Defense Under Facts Presented

In the case of Sharr v. City of Scranton, No. 3:23-CV-00826-JFS (M.D. Pa. March 13, 2024 Saporito, C.M.J.), Chief Magistrate Judge Joseph F. Saporito, Jr. granted a Motion to Dismiss in a civil rights action brought by three (3) retirees against their former employer, The City of Scranton, relative to issues surrounding their monthly pension benefit payments that were reduced by The City.

The Plaintiffs had presented a claim that The City had violated their Fourteenth Amendment Due Process and Equal Protection Rights and had presented a 42 U.S.C. §1983 civil rights action.

The Defendant, City of Scranton, moved to dismiss the action for failure to state a claim upon which relief may be granted under an argument that the Plaintiffs’ claims were barred by the applicable statute of limitations.

The Plaintiffs attempted to argue that the time within which they could file a lawsuit was extended by the continuing violations doctrine. 

The Plaintiff contended that each reduced monthly pension benefit payment paid by The City constituted another in a series of allegedly continuing unlawful acts, all of which, when taking together, comprised an ongoing continuing practice of allegedly violating the Plaintiffs’ constitutional rights.

Chief Mag. Judge 
Joseph F. Saporito, Jr.
M.D. Pa.

The court reviewed the law of the continuing violation doctrine and found that the Plaintiffs’ arguments did not meet the requirements of that doctrine. 

 The court found that the Plaintiffs’ claims were instead barred by the statute of limitations because the Plaintiffs were aware of their alleged injury at the time the alleged injury occurred well beyond the two (2) state of limitations applicable to civil rights actions.

As such, the court granted the Defendant’s Motion to Dismiss. Moreover, the court dismissed the action without leave to amend as the court found that it was clear from the facts alleged that any attempt to file an Amended Complaint would be futile as a matter of law.

Anyone wishing to review a copy of this decision may click this LINK.

Court Finds Medical Malpractice Claim To Be Barred By Statute of Limitations

In the case of Swart v. UPMC Pinnacle Hospital, No. 2020-CV-10091 MM (C.P. Dauph. Co. May 3, 2023 McNally, J.), the Plaintiff appealed a trial court Order which dismissed her medical malpractice Complaint based upon the application of the statute of limitations.

According to the Opinion, the Plaintiff alleged medical negligence relative to hip replacement surgeries. The Plaintiff asserted that the doctor utilized prosthetics that were too short during each of the Plaintiff’s surgeries, causing a painful limp. The Plaintiff also alleged that she consulted a different doctor, who performed a third surgery, and concluded that the prosthetics that the Defendant had implanted were too short and made the Plaintiff’s legs uneven.

In this matter, there was a dispute between the parties as to when the Plaintiff’s cause of action arose.

The Defendants asserted that the latest date that the Plaintiff’s cause of action could have accrued was around July of 2018 when the Plaintiff obtained a third opinion confirming that her hip replacement surgery caused her to have a shorter right leg and corresponding pain.

The Plaintiffs asserted that the discovery rule should be applied such that the accrual of the cause of action would not be until after the third surgery was completed in October of 2018 when the first doctor’s alleged negligence was allegedly confirmed.

The trial court considered the discovery rule and concluded that the Plaintiff’s cause of action accrued no later than July of 2018 as evidenced by the record and the Plaintiff’s own deposition testimony. 

More specifically, the record indicated that the Plaintiff was, at that point, aware of significant harm and a causal connection between the harm and the doctor’s actions, even though the Plaintiff did not have complete knowledge of the injury’s full extent or precise cause of the same. 

The court confirmed that the Plaintiff testified at her deposition with admissions that she knew by July of 2018 that she was suffering pain, leg length discrepancy, and physical limitations after the second surgery and that she believed that the doctor’s surgeries were responsible.

Accordingly, since the Plaintiff filed suit beyond the two (2) year statute of limitations, the court ruled in favor of the Defendants and dismissed the Complaint.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 22, 2023).

Source of image:  Photo by Anna Shvets on www.pexels.com.

Case Dismissed Due to Statute of Limitations Defense

In the case of O’Hearn v. Wells Fargo Home Mortgage, Inc., No. 2013-CV-7170 (C.P. Lack. Co. Aug. 4, 2023 Nealon, J.), the court granted a Defendant’s Motion for Summary Judgment based upon a statute of limitations defense.

According to the Opinion, this matter involved a case in which the Plaintiffs’ father passed away back in 2004 and his estate defaulted on his mortgage on his property.  At some point thereafter, the Defendant bank filed a mortgage foreclosure action against the estate and locked up the deceased father’s residence in an apparent attempt to secure and protect that property.

Upon gaining access to the mortgage property five (5) years later on June 14, 2009, the Plaintiffs discovered that the residence had been vandalized by intruders who had damaged the property and stole or destroyed personal property contained in the file.

The Plaintiffs filed suit against the bank on December 20, 2013 asserting various claims for waste, conversion, misrepresentation, and negligent infliction of emotional distress based upon the banks allegedly failure to properly secure their deceased father’s residence and protect the contents.

Relying upon the Plaintiff’s deposition testimony and the record before the court, the bank filed a Motion for Summary Judgment asserting, in part, a statute of limitations defense.

Judge Nealon confirmed that the claims presented by the Plaintiff were indeed subject to a two (2) year statue of limitations which began to run when the Plaintiff’s discovered their alleged losses and damages back on June 14, 2009.

Since the Plaintiffs did not commence their lawsuit within the two (2) year statute of limitations, the court found that the claims presented were barred.

As such, the Motion for Summary Judgment filed by the Defendant was granted.


Anyone wishing to review a copy of this decision may click this LINK.

CORRECTED LINK: Trial Court Upholds Right of Plaintiff To Amend Complaint At Trial To Add Claims of Recklessness and Punitive Damages

 

Here is the corrected LINK for the case of Vanston v. Green Ridge Health Care Group, LLC, No. 2019-CV-6227 (C.P. Lacka. Co. July 7, 2023 Munley, Julia, J.), which was highlighted here on Tort Talk yesterday.  The case involved the Court's allowance of an amendment to a Complaint at trial to add claims of recklessness and punitive damages.

Sorry for any confusion that may have been caused.

Trial Court Upholds Right of Plaintiff To Amend Complaint At Trial To Add Claims of Recklessness and Punitive Damages

In the case of Vanston v. Green Ridge Health Care Group, LLC, No. 2019-CV-6227 (C.P. Lacka. Co. July 7, 2023 Munley, Julia, J.), the court denied a Defendant’s Motion for an Amendment of an Order for the purpose of seeking an interlocutory appeal.  This request was made relative to the trial court’s underlying Order that had allowed an amendment to the Plaintiff’s Complaint at a trial of a negligence case involving a nursing home to add a claim of recklessness and a claim for punitive damages after the completion of the testimony of certain Defendants and even though the statute of limitations had previously expired.

In this regard, Judge Munley found that there were sufficient facts pled in the original Complaint such that the court rejected the Defendant’s argument that the claims of recklessness and punitive damages were barred by the statute of limitations.

In her decision, Judge Munley cited to previous decisions by her colleague on the Lackawanna County Court of Common Pleas, Judge Terrence R. Nealon, who had previously ruled that amendments to a Complaint are permitted after the running of the statute of limitations so long as no new causes of action are pled.

Judge Julia Munley
Lackawanna County

In this regard, Judge Munley noted that recklessness is considered an aggravated form of negligence and not a new cause of action. She also noted that, under Pennsylvania law, a request for punitive damages does not constitute a cause of action in and of itself. Rather, a request for punitive damages is merely incidental to an underlying cause of action.

Accordingly, Judge Munley ruled that an amendment to a Complaint to add a claim for punitive damages after the statute of limitations has run is permissible where the main operative facts to support such a claim have been previously alleged in the original Complaint.

Judge Munley noted that a decision was further supported by the fact that the Plaintiffs alleged facts indicative of reckless conduct in the original Complaint.  The Court pointed to those cases in which it has been held that recklessness can be pled in any case whatsoever, regardless of the facts pled.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Jamie Anzalone and Attorney Kelly Ciravolo of Anzalone Law Offices in Wilkes-Barre, Pennsylvania for bringing this case to my attention.

Court Denies Preliminary Objections Based on Statute of Limitations Issues Where Plaintiff Made Good Faith Effort to Complete Service

In the case of Rosenwald v. Finkelstein, No. 4813-CV-2022 (C.P. Monroe Co. April 17, 2023 Williamson, J.), the court overruled Preliminary Objections filed by a Defendant to a Plaintiff’s Complaint alleging lack of proper service and the expiration of the statute of limitations.

This case arose out of a motor vehicle accident.

The Plaintiff admitted that they mistakenly attempted to complete service via a process servicer in reliance upon Pa. R.C.P. 400.1, instead of Pa. R.C.P. 400.

The court noted that Pa. R.C.P. 400.1 allows service of original process in the First Judicial District (Philadelphia) by the sheriff or a competent adult.

The court noted that, after realizing their mistake, the Plaintiff promptly filed a Praecipe to Reinstate the Complaint and engaged the local county Sheriff’s Office in Monroe County to make personal service which was completed.

Relative to the Preliminary Objections, the court first noted that the central focus of the Defendant’s Preliminary Objections was the expiration of the statute of limitations. Judge Williamson initially noted that the defense of the expiration of the statute of limitations is an affirmative defense that is not generally properly raised during Preliminary Objections.

Regardless, the court went on to review the merits of the Preliminary Objections. These objections were denied given that the Plaintiffs sought to remedy their error within days of the filing of the Preliminary Objections.

More specifically, the court found that the procedural history in the case did not suggest a course of conduct by the Plaintiff that was meant to stall the action. Rather, the record revealed that the Plaintiff had made a simple mistake and corrected the same promptly. 

The court also noted that the Plaintiffs had informed the Defendant’s insurer of the accident so that the Defendant was able to begin working on the defense of the case. 

As such, the court found that the Defendant did not suffer any harm.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 16, 2023).

Trial Court Dismisses Case Due to Lack of Proper Service in a Timely Fashion

In the case of Brown v. Gilman, No 21-CV-4724 (C.P. Lack. Co. May 11, 2023 Nealon, J.), the court sustained a Defendant’s Preliminary Objections pursuant to Pa. R.C.P. 1028(a)(1) asserting a lack of proper service of original process within the two-year statute of limitations.

After reviewing the record before him, Judge Nealon noted that this was not a case were a Plaintiff actually served the Defendant with original process by an improper mode of service within the applicable statute of limitations.

Rather, the court found that the conduct of the Plaintiff in this case was akin to the service efforts seen by Plaintiffs in other cases who were unsuccessful with an initial attempt at service, but then made no further efforts to serve a Defendant by reinstating the Complaint or seeking leave of court to use an alternative form of service under Pa. R.C.P. 430. 

Here, the court noted that there was an almost eighteen (18) month period of time between the time that notice was received from the Sheriff that the Defendant was never served with original process before any attempt was made by the Plaintiff to reinstate the Complaint and complete service.

As such, the court found that the Plaintiffs have failed to satisfy their burden of demonstrating that they acted diligently in making a good-faith efforts to timely complete service upon the Defendant with original process and notice of the lawsuit.

Judge Nealon also noted that, under Pennsylvania law, providing notice to the Defendant’s carrier cannot serve as a substitute to actual service upon a Defendant.

The court emphasized that service of process is the mechanism by which a court obtained jurisdiction over a Defendant and, absent proper service, the court does not possess jurisdiction.

As such, the court sustained Defendant’s Preliminary Objections and entered judgment in favor of the Defendant.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Karolina Grabowska on www.pexels.com.

Amendment To Add New Claim To Med Mal Case Not Allowed After Statute of Limitations Had Expired

In the case of Kersey v. Pisano, No. 798 EDA 2022 (Pa. Super. March 7, 2023 Sullivan, J., Panella, P.J., Bender, P.J.E.) (Op. by Sullivan, J.)[Non-Precedential], the court affirmed in part and reversed in part relative to post-trial motions filed in a medical malpractice case after a verdict was entered in favor of a Plaintiff.

In this case, the Pennsylvania Superior Court found that, where the Plaintiff’s Complaint made allegations solely about prostate cancer, it was an error by the trial court to allow an amendment of the Complaint so as to permit evidence to be presented at trial on a claim for liver cancer, where that claim was only asserted after the two (2) year statute of limitations had run.

The court reaffirmed the general rule that amendments to a Complaint to add new causes of action after the statute of limitations is not permitted.

The court additionally noted that, where an expert report includes a new cause of action on behalf of a Plaintiff, the trial court may not permit the Plaintiff to introduce that opinion after the applicable statute of limitations has run.

The court found that there was no possible reading of the Complaint that could support a claim that the allegations of liver cancer were contained therein so as to allow the desired amendment or claims to proceed.

In this matter, because the trial court utilized a special verdict questionnaire that allowed the jury to reach separate verdicts for the two (2) types of cancer, only the jury verdict relative to the claim of medical malpractice related to the liver cancer would be reversed.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.

Motion To Dismiss Granted Where Attempt At Service By Mail Found to Be Deficient

In the case of Staretz v. Wal-Mart Stores East, LP, No. 3:22-CV-00967 (M.D. Pa. March 3, 2023 Mehalchick, J.), Federal Magistrate District Court Judge Karoline Mehalchick recommended that a Defendant’s F.R.C.P. 12 (b)(6) Motion to Dismiss be granted on the grounds that the Plaintiff failed to properly serve the Defendant with the lawsuit.

The court pointed out that the return receipt for the purported service by mail was illegible and that the Plaintiff provided no other evidence to establish the authority of the signee to accept service on behalf of the Defendant.

Federal Mag. Judge Karoline Mehalchick
M.D. Pa.

Judge Mehalchick noted that the rules of service must be strictly followed as service of process is how the court obtains jurisdiction over a defendant.

Given that the signature on the return receipt of the attempted service by mail was illegible and given that there was no other evidence that the Defendant received actual notice of the lawsuit, the court found that the Plaintiff’s attempt at service could not be considered to have been completed in “good faith” as required by Pennsylvania law and, as such, the failed efforts by the Plaintiff to complete service were not found to have tolled the statute of limitations.

Accordingly, Judge Mehalchick recommended that the Defendant's Motion to Dismiss be granted.    

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.