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                                   2019 PA Super 92

    JAIDEN BUCHAN                   :              IN THE SUPERIOR COURT OF
                                    :                   PENNSYLVANIA
                   Appellant        :
                                    :
                                    :
              v.                    :
                                    :
                                    :
    THE MILTON HERSHEY SCHOOL;      :              No. 739 MDA 2018
    PETER GURT, INDIVIDUALLY & AS   :
    PRESIDENT OF THE MILTON         :
    HERSHEY SCHOOL; KATHERINE       :
    AKINS; RONALD AKINS; AND KELLEY :
    RUSENKO                         :

                  Appeal from the Order Entered April 4, 2018
    In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                                2017-CV-5121

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.:                          FILED: MARCH 27, 2019

       Appellant, Jaiden Buchan, appeals from the April 4, 2018 Order entered

in the Dauphin County Court of Common Pleas sustaining the Preliminary

Objections filed by Appellees, the Milton Hershey School, Peter Gurt, Katherine

Akins, Ronald Akins, and Kelley Rusenko, and dismissing Appellant’s

Complaint with prejudice. After careful review, we affirm.

       Appellant’s Federal Court Action

       On December 28, 2016, Appellant filed an eight-count Complaint1

against Appellees in the U.S. District Court for the Middle District of
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1 Appellant alleged the following claims against Appellees: (1) Violation of the
Americans with Disabilities Act; (2) Violation of the Fair Housing Act; (3)
Negligence; (4) Intentional Infliction of Emotional Distress; (5) Negligent
Infliction of Emotional Distress; (6) Breach of Fiduciary Duties of Care and
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Pennsylvania.2,   3   Appellant’s claims arose from incidents that she alleges

occurred during time she spent as a resident and student at the Milton Hershey

School, a private residential school for children.

       On March 20, 2017, Appellees filed a Motion to Dismiss for Failure to

State a Claim pursuant to Federal Rule of Civil Procedure 12(b)(6). On May

1, 2017, Appellant filed an Amended Complaint. On May 15, 2017, Appellees

renewed their Motion to Dismiss for Failure to State a Claim.

       On June 19, 2017, Appellant filed a Notice of Voluntary Dismissal

Without Prejudice pursuant to Fed. R. Civ. P. 41.       The following day, the

federal court clerk administratively closed Appellant’s case by noting “civil

case terminated.”       See Buchan v. The Milton Hershey School, et al.,

Docket No. 1:16-CV-02557-CCC.

Appellant’s State Court Action

       Almost one month later, on July 11, 2017, Appellant initiated the instant

action in the Dauphin County Court of Pleas by filing a Praecipe for Writ of



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Good Faith; (7) Negligence Per Se; and (8) Malicious Prosecution. See Federal
Complaint, 12/28/16.
2See Buchan v. The Milton Hershey School, et al., Docket No. 1:16-CV-
02557-CCC.

3 Two of Appellant’s claims arose under federal law. Appellant pleaded in the
Complaint that the federal court had supplemental jurisdiction over the
remaining state-law claims pursuant to 28 U.S.C. § 1367(a).




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Summons.4       On September 7, 2017, Appellant filed a Complaint against

Appellees alleging (1) Negligence; (2) Breach of Duties of Care and Good

Faith; (3) Intentional Infliction of Emotional Distress; (4) Negligent Infliction

of Emotional Distress; and (5) Malicious Prosecution. See Complaint, 9/7/17.

Appellant filed a First Amended Complaint on October 17, 2017.5          Each of

these claims has a two-year statute of limitations. See 42 Pa.C.S. § 5524(1);

(7). It is undisputed that the two-year statute of limitations for Appellant’s

claims began to run on her eighteenth birthday—January 4, 2015.6

        On October 27, 2017, Appellees filed Preliminary Objections to

Appellant’s First Amended Complaint, alleging, inter alia, that the statute of

limitations barred Appellant’s claims.

        Appellant filed a Response to Appellees’ Preliminary Objections on

November 16, 2017.          Appellant averred in her Response that the instant

Complaint was timely because the filing of a Complaint in federal court within

the statute of limitations had tolled the statute of limitations for timely filing



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4Appellant had the Writ reissued on August 11, 2017, and served it on August
15, 2017.

5 In the Amended Complaint, Appellant removed the Hershey Trust Company
as a defendant, and reordered the presentation of her claims. The substantive
allegations in the Amended Complaint are not materially different from those
in the Complaint.

6   See 42 Pa.C.S. § 5533(b).




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the state-law claims in state court. See Response, 11/16/17, at ¶¶ 91-92,

(citing 42 Pa.C.S. § 5103(b)7).

       On December 6, 2017, Appellees filed a Brief in Support of their

Preliminary Objections, in which they argued, inter alia, that Appellant’s

reliance on 42 Pa.C.S. § 5103 to rehabilitate her otherwise untimely state law

action was misplaced. In particular, Appellees averred that Section 5103 did

not apply “because (1) [Appellant’s] state law claims were never transferred,

remanded, or dismissed by the federal district court and (2) even if

[Appellant’s] voluntary dismissal could be construed as a dismissal by the

district court, binding case law from the Supreme Court of the United States

holds that such dismissal is not ‘for lack of jurisdiction,’ as required to invoke

§ 5103(b).” Brief, 12/6/17, at 21 (emphasis omitted).

       On December 28, 2017, Appellant filed a Motion for Enlargement of Time

to file a reply to Appellees’ Brief in Support of their Preliminary Objections.

       On December 29, 2017, before the court had ruled on her Motion for

Enlargement of Time, Appellant filed a Reply Memorandum of Law in which

she argued, for the first time, that 28 U.S.C. § 1367(d)8 applied to toll the

statute of limitations in the instant state court action. Reply Memorandum,

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7 Section 5103(b) provides that where a “matter is dismissed by the United
States court for lack of jurisdiction” the filing of a federal complaint has tolled
the statute of limitations for filing a state court action. 42 Pa.C.S. § 5103(b).

828 U.S.C. § 1367(d) provides a plaintiff with 30 days to refile state claims in
a state court when the U.S. District Court has declined to exercise
supplemental jurisdiction over those claims. See 28 U.S.C. § 1367(d).

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12/29/17, at 3.      She baldly claimed that “[u]nlike Pennsylvania Courts of

Common Pleas, nothing in federal court occurs without the imprimatur of the

[f]ederal [c]ourt, i.e., the [f]ederal [c]ourt approved [Appellant’s] voluntary

withdraw[al] on June 20, 2017.” Id. at 4. Thus, she concludes that she timely

filed her July 11, 2017 Praecipe for Writ of Summons within 30 days of the

federal court “grant[ing] her motion and terminat[ing] the matter on June 20,

2017.” Id.

       On January 2, 2018, the trial court entered an Order indicating that it

would not consider Appellant’s Motion for Enlargement of Time because

Appellant had violated Dauphin County Local Rules 208.2(d) and 205.2(a)(3).9

       On March 12, 2018, Appellees filed a Motion to Strike Appellant’s

December 29, 2017 Memorandum of Law and to preclude Appellant’s

participation in oral argument owing to Appellant’s non-compliance with Local

Rule No. 208.2(d).        Appellant responded on March 16, 2018, by filing a

Response in Opposition to Appellees’ Motion and a Cross-Motion for leave to

file a Reply Memorandum Nunc Pro Tunc.



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9 Dauphin County Local Rule No. 208.2(d) requires a movant to certify that it
has “disclosed the full text of the motion and the proposed order to all parties
. . . and that concurrence to both the motion and proposed order has been
given or denied by each party.” Local Rule No. 205.2(a)(3) requires that
proposed orders or alternative orders accompany all civil motions, petitions,
administrative applications, and answers or responses. See Local Rule No.
205.2(a)(3)(a). It also requires that proposed orders contain a distribution
legend with contact information of all attorneys and self-represented parties
served with the pleading. See id at No. 205.2(a)(3)(b).

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       On March 21, 2018, the trial court held a hearing on Appellees’

Preliminary Objections. The next day, Appellees filed a Motion to Supplement

Exhibits to Preliminary Objections. In this Motion, Appellees noted that, at

the hearing the previous day, Appellant’s counsel relied exclusively on

Appellant’s 28 U.S.C. § 1367(d) argument, which Appellant had advanced for

the first time in her untimely Memorandum of Law. Appellees, thus, sought

to supplement the exhibits to their Preliminary Objections to address

Appellant’s Section 1367(d) argument, in the event that the court declined to

grant their outstanding Motion to Strike Appellant’s December 29, 2017

Memorandum of Law. Appellees reiterated that Appellant did not raise her

Section 1367(d) claim in her initial response to their Preliminary Objections.

       On April 4, 2018, the trial court sustained Appellees’ Preliminary

Objections and dismissed Appellant’s Complaint with prejudice.10 With respect

to the substantive issues, the court rejected Appellant’s argument that the

voluntary dismissal of her federal Complaint without prejudice rendered her


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10  The court noted in its Memorandum Opinion that, in ruling on the
Preliminary Objections, it had considered Appellant’s November 16, 2017
Response and Brief in Opposition to Appellees’ Preliminary Objections, but it
declined to consider her December 29, 2017 Reply Brief as Appellant had filed
it in violation of Dauphin County Local Rule 210(3), which prohibits a party
from filing a reply brief “unless otherwise directed by the Assigned Judge.”
See Trial Ct. Op., 4/4/18, at 1 (citing Dauphin County Local Rule No. 210(3)).
However, in its Opinion, the court also specifically found that Appellant could
not rely on 28 U.S.C. § 1367(d)—the statute Appellant invoked for the first
time in her Reply Brief, which the court claimed not to have considered in
ruling on Appellees’ Preliminary Objections—to toll the statute of limitations.
See id. at 4.

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state court Complaint timely, and found Appellant’s state law claims time-

barred. Trial Ct. Op., 4/4/18, at 1-2.

      This timely appeal followed. Appellant complied with the court’s Order

directing her to file a Pa.R.A.P. 1925(b) Statement. The court relied on its

April 4, 2018 Memorandum Opinion in support of affirmance.

      Appellant raises the following issues on appeal:

      1. Pursuant to 28 U.S.C. § 1367 and 42 Pa.C.S. § 5103, did
         [Appellant’s] timely commencement of her federal action and
         then timely and complete transfer of that action to the Dauphin
         County Court of Common Pleas toll the [s]tatute of
         [l]imitations?

      2. Pursuant to Pa.R.C.P. 126, did the Court of Common Pleas err
         in striking [Appellant’s] Reply?

Appellant’s Brief at 10.

      In her first issue, Appellant claims that the trial court erred in sustaining

Appellees’ Preliminary Objections and concluding that, in the absence of an

order from the federal court, her timely filed federal court action did not toll

the statute of limitations on her state claims.

      This Court reviews an order sustaining preliminary objections “to

determine whether the trial court committed an error of law.” Richmond v.

McHale, 35 A.3d 779, 783 (Pa. Super. 2012). “In determining whether the

trial court properly sustained preliminary objections, the appellate court must

examine the averments in the complaint, together with the documents and

exhibits attached thereto, in order to evaluate the sufficiency of the facts




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averred.”   Clemleddy Const., Inc. v. Yorston, 810 A.2d 693, 696 (Pa.

Super. 2002) (citation omitted).

      To the extent that our review of Appellant’s claim requires us to interpret

procedural rules, “our standard of review is de novo, and our scope of review

is plenary.”   Barrick v. Holy Spirit Hosp. of the Sisters of Christian

Charity, 32 A.3d 800, 808 (Pa. Super. 2011) (en banc) (noting also that the

interpretation and application of procedural rules presents a question of law).

      28 U.S.C. § 1367(d) provides that “[t]he period of limitations for any

claim asserted under subsection (a) [pertaining to supplemental jurisdiction],

and for any other claim in the same action that is voluntarily dismissed at the

same time as or after the dismissal of the claim under subsection (a), shall be

tolled while the claim is pending and for a period of 30 days after it is

dismissed[.]” 28 U.S.C. § 1367(d).

      42 Pa.C.S. § 5103 provides, in relevant part, that the statute of

limitations on a state law cause of action will toll when a litigant timely

commences an action in federal district court, “and the matter is dismissed by

the United States court for lack of jurisdiction.” 42 Pa.C.S. § 5103(b)(1).

      Appellant claims that she timely filed her Complaint in Dauphin County.

In support of this claim, and contrary to the argument she initially made before

the trial court in her December 29, 2017 Reply Memorandum, Appellant now

argues that when she voluntarily dismissed her federal claims, she “rendered

the federal court without federal jurisdiction.” Appellant’s Brief at 17. She

concedes that the federal court did not enter an order terminating her case,

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but rather the federal clerk of courts terminated it administratively.         Id.

Notwithstanding, she argues that no order of court was needed or possible

because her voluntary dismissal had divested the federal court of jurisdiction.

Id.

      In addressing Appellant’s claims, the trial court emphasized that

because Appellant “voluntarily dismissed her Complaint, the District Court

took no action on it[.]” Trial Ct. Op. at 4. It found that both Section 5103

and Section 1367(d) “only toll the statute of limitations when the District Court

itself dismisses some or all of [a p]laintiff’s claims.”     Id.   Thus, the court

concluded that Appellant’s “federal action that she later dismissed did not

serve to toll the statute of limitations on her current claims, and the action

that she filed [in state court] is facially untimely.” Id.

      We agree. The plain language of Section 5103 indicates that it applies

only when “the matter is dismissed by the United States court for lack of

jurisdiction.”   42 Pa.C.S. § 5103(b)(1) (emphasis added).         Here, the U.S.

District Court did not dismiss Appellant’s claims for lack of jurisdiction. Rather,

Appellant voluntarily dismissed her Complaint and the federal court clerk

merely marked her case administratively dismissed. Thus, Appellant’s filing

of an action in federal district court, and subsequent voluntary dismissal of it,

did not toll the statute of limitations such that the instant state court action

was timely.

      Appellant’s reliance on Section 1367(d) is similarly misplaced. Appellant

baldly claims that she is entitled to relief because the “voluntary dismissal” of

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her federal Complaint “is expressly authorized by 28 U.S.C. § 1367(d).”

Appellant’s Brief at 18.

       Section 1367(d) tolls the limitations period for state law claims that are

pending before a federal court under supplemental jurisdiction.        Although

Appellant is correct that Section 1367(d) includes the phrase “voluntary

dismissal,” she fails to acknowledge that the language of Section 1367(d)

indicates that the 30-day tolling period set forth in Section 1367(d) only

applies when a plaintiff voluntarily dismisses any claim other than one that

is pending before a federal court under supplemental jurisdiction. Appellant

asserted all of her state law claims in her federal Complaint under

supplemental jurisdiction. She then voluntarily dismissed all of those state

law claims. Thus, because Appellant did not voluntarily dismiss any claims

other than those she asserted in federal court under supplemental jurisdiction,

the “voluntarily dismissed” language of Section 1367(d) does not apply to

Appellant’s claims. Accordingly, Appellant cannot rely on Section 1367(d) to

render her otherwise untimely state Complaint timely.

       In her second issue, Appellant baldly claims that the trial court should

not have stricken the December 29, 2017 Reply Memorandum that she filed

“unilaterally and in violation of [l]ocal [r]ule.”11 Appellant’s Brief at 22. In


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11 We review an order striking a pleading for an abuse of discretion.
Francisco v. Ford Motor Co., 580 A.2d 374, 375 (Pa. Super. 1990). “Thus,
as an appellate court reviewing the ruling of a trial court, we may not



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the alternative, she avers that, after striking the Reply Memorandum, the

court should have granted her Cross-Motion for leave to file a Reply

Memorandum Nunc Pro Tunc.             Id.      Appellant concedes, however, that the

“striking of the Reply appeared inconsequential to the trial court’s [O]pinion”

given that she argued the merits of the issues raised therein, without

objection, at the hearing on Appellees’ Preliminary Objections. Id.

       We agree with Appellant that, notwithstanding the court’s purported

decision to strike her Reply Memorandum, the court appears to have actually

considered the merits of the issues raised therein when it rendered its

decision. See Trial Ct. Op. at 4 (where the trial court concluded that Appellant

could not rely on 28 U.S.C. § 1367 to toll the statute of limitations). Thus, we

conclude that Appellant was not aggrieved by the court’s nominal decision to

strike her Reply Memorandum.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2019

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substitute our judgment for the judgment of the trial court, absent evidence
that the trial court abused its discretion.” Id.



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