J-A15037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH NICOLAS,                           :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellant              :
                                          :
           v.                             :
                                          :
CYNTHIA ZOLNER                            :          No. 1261 MDA 2016

                  Appeal from the Order entered June 27, 2016
                in the Court of Common Pleas of Luzerne County,
                        Civil Division, No(s): 2013-9828

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 15, 2017

     Joseph Nicolas (“Nicolas”) appeals from the Order sustaining the

Preliminary Objections filed by Cynthia Zolner (“Zolner”), and dismissing

Nicolas’s Complaint with prejudice. We affirm.

     On August 28, 2011, a tree on Zolner’s property was uprooted in a

storm, and fell onto Nicolas’s 1979 Pontiac Trans Am (“the vehicle”), causing

extensive damage.     On August 19, 2013, Nicolas filed a Writ of Summons

against Zolner, his neighbor. The Writ was not served on Zolner. On July 7,

2015, Nicolas filed a Complaint against Zolner, seeking damages “in an

amount in excess of $50,000.00 plus interest and costs….”. See Complaint,

7/7/15, ¶¶ 2, 6.     Nicolas asserts that Zolner was negligent because she

“knew or should have known that the trees along the edge of her property

were in substantially dangerous condition, requiring maintenance and/or

protection for the adjoining property owners and any other personal
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property, including, but not limited to, the [v]ehicle.” Id. ¶ 8; see also id.

¶ 7 (wherein Nicolas contends that Zolner was aware of the condition of the

trees). Nicolas further claims that due to the damage, the vehicle can no

longer be driven; the work that Nicolas put into the vehicle has been lost;

and the vehicle has been substantially devalued.        See id. ¶¶ 11, 13, 15.

Zolner was not served with a copy of the Complaint.

        On February 24, 2016, Zolner filed Preliminary Objections pursuant to

Pennsylvania Rule of Civil Procedure 1028(a)(1),1 seeking dismissal of the

Complaint due to improper service of the Writ of Summons and the

Complaint. Zolner also filed an accompanying Notice to plead, and a brief in

support of her Preliminary Objections.

        Nicolas filed a Praecipe to Reinstate the Complaint on the same date.

The Sheriff’s Return of Service was docketed on March 1, 2016, indicating

that Zolner was served with the Complaint on February 29, 2016. Nicolas

did not file a response to Zolner’s Preliminary Objections at that time.




1
    Rule 1028 provides, in relevant part, as follows:

     (a) Preliminary objections may be filed by any party to any pleading
     and are limited to the following grounds:

        (1) lack of jurisdiction over the subject matter of the action or the
        person of the defendant, improper venue or improper form or
        service of a writ of summons or a complaint[.]

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



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      On May 4, 2016, Zolner filed a Motion pursuant to Luzerne County

Local Rule 1028(c),2 noting Nicolas’s failure to file a brief in opposition to

Zolner’s Preliminary Objections, and requesting the trial court to deem her

Preliminary Objections unopposed and dismiss Nicolas’s Complaint.

      The following day, Nicolas filed an Answer to Zolner’s Preliminary

Objections and a brief in support thereof. Nicolas also filed a Response to

Zolner’s Motion.   Zolner subsequently filed a Reply brief in support of her

Preliminary Objections.

      The trial court conducted a hearing on May 31, 2016. By Order dated

June 27, 2016, the trial court sustained Zolner’s Preliminary Objections and


2
  Luzerne County Local Rule 1028(c) provides, in relevant part, as follows,
regarding the procedure for filing preliminary objections:

      (3) Within twenty (20) days of service of the matter, supporting
      brief and proposed order, any party wishing to contest the same
      shall file a comprehensive brief in opposition with the
      Prothonotary and serve the same upon all parties and the Court
      Administrator who shall then assign it to a Judge and shall so
      notify all parties.

                                      ***

      (5) If the party filing the matter fails to file a comprehensive
      brief as required by this rule, the Court Administrator shall
      present an Order to Motions Court who shall dismiss the matter.
      If any opposing party fails to file its brief in opposition within the
      time provided in this Rule, that party shall be deemed not to
      oppose the matter and the Judge to whom the assignment has
      been made shall dispose of it in accordance with the law as a
      matter of course.

Luz. Co. C.P.R. 1028(c)(3), (5).



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dismissed Nicolas’s Complaint, with prejudice, concluding that Nicolas had

failed to properly serve Zolner with the Writ of Summons or the Complaint.

      Nicolas filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of errors complained of on appeal.3

      On appeal, Nicolas raises the following issues for our review:

      1. Whether the [t]rial [c]ourt erred in dismissing the Complaint
      in this case since, at all times relevant hereto, Nicolas had
      provided all relevant documents[,] at the request of Erie
      Insurance [(“Erie”)] on behalf of Zolner[,] to [Erie,] since Erie
      sought to avoid involving legal counsel[?]

      2. Whether the [t]rial [c]ourt erred in granting the Preliminary
      Objections to the Complaint without allowing this matter to
      proceed to discovery and to the completion of the pleadings[,]
      since the alleged lack of service or a statute of limitations
      defense is an affirmative defense that must be pleaded as new
      matter so that facts could be elicited to confirm or deny the
      same[?]

Brief for Appellant at 3 (emphasis omitted).

      Our standard of review of an order sustaining preliminary objections is

well settled.

      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 averred. The impetus of our inquiry is to determine the
      legal sufficiency of the complaint and whether the pleading
      would permit recovery if ultimately proven. This Court will
      reverse the trial court’s decision regarding preliminary objections
      only where there has been an error of law or abuse of discretion.

3
  On March 21, 2017, this Court dismissed Nicolas’s appeal, as a result of his
failure to file an appellate brief. On the same date, Nicolas filed a Motion for
Reconsideration of Order, requesting a seven-day extension to file his brief.
This Court subsequently granted Nicolas’s Motion, and reinstated the appeal.


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      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.

Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071, 1073 (Pa. Super.

2004) (citation omitted).

      We will address Nicolas’s claims together.     In his first claim, Nicolas

argues that he provided all pleadings to Erie, Zolner’s insurance company,

and therefore, Zolner had actual notice of the litigation. Brief for Appellant

at 7. Nicolas contends that because Zolner was working with Erie regarding

the claim, she was not prejudiced by Nicolas’s failure to serve her with the

Complaint. Id. at 9, 12. Nicolas asserts that “[t]he immediate (same day)

delivery of the Complaint to [Zolner’s] representative is clear good faith to

notify [Zolner], and … negotiations to resolve the case are evidence that

there was never an intent to forestall the litigation.”      Id. at 8.   Nicolas

additionally claims that Zolner’s counsel refused formal service of the

Complaint, and he “took action as directed by the insurance agent acting for

[Zolner.]” Id. at 9, 11.

      In his second claim, Nicolas avers that the trial court erred by

sustaining the Preliminary Objections solely based on lack of service, and by

failing to conduct a hearing to develop factual issues. Id. at 12-13. Nicolas

claims that “the argument turned on the issue of the statute of limitations,”

which should have been raised as an affirmative defense. Id.




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     Pennsylvania Rule of Civil Procedure 1007 provides that “[a]n action

may be commenced by filing with the prothonotary (a) a praecipe for a writ

of summons, or (2) a complaint.”     Pa.R.C.P. 1007.    Rule 401 dictates the

period within which service is to be made:

     (a) Original process shall be served within the Commonwealth
     within thirty days after the issuance of the writ or the filing of
     the complaint.

     (b)(1) If service within the Commonwealth is not made within
     the time prescribed by subdivision (a) of this rule …, the
     prothonotary upon praecipe and upon presentation of the
     original process, shall continue its validity by reissuing the writ
     or reinstating the complaint, by writing thereon “reissued” in the
     case of a writ or “reinstated” in the case of a complaint.

     (2) A writ may be reissued or a complaint reinstated at any time
     and any number of times. A new party defendant may be
     named in a reissued writ or a reinstated complaint.

                                    ***

     (4) A reissued, reinstated or substituted writ or complaint shall
     be served within the applicable time prescribed by subdivision
     (a) of this rule or by Rule 404 after reissuance, reinstatement or
     substitution.

     (5) If an action is commenced by writ of summons and a
     complaint is thereafter filed, the plaintiff instead of reissuing the
     writ may treat the complaint as alternative original process and
     as the equivalent for all purposes of a reissued writ, reissued as
     of the date of the filing of the complaint. Thereafter the writ
     may be reissued, or the complaint may be reinstated as the
     equivalent of a reissuance of the writ, and the plaintiff may use
     either the reissued writ or the reinstated complaint as alternative
     original process.

Pa.R.C.P. 401 (note omitted).




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      In Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), the Pennsylvania

Supreme Court sought to end abuses by plaintiffs who tolled the statute of

limitations by having original process repeatedly reissued without notifying

the defendant of pending litigation. The Lamp Court explained that

      [o]ur purpose is to avoid the situation in which a plaintiff can
      bring an action, but, by not making a good-faith effort to notify a
      defendant, retain exclusive control over it for a period in excess
      of that permitted by the statute of limitations. Accordingly, …
      we rule that henceforth, … 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.

Id. at 889.    In its subsequent decision in Farinacci v. Beaver County

Industrial Development Authority, 511 A.2d 757 (Pa. 1986), the

Supreme Court interpreted the rule set forth in Lamp, and concluded that

“Lamp requires of plaintiffs a good-faith effort to effectuate notice of

commencement of the action.”       Id. at 759; see also Englert v. Fazio

Mech. Servs., Inc., 932 A.2d 122, 124 (Pa. Super. 2007) (stating that

“[o]nce an action is commenced by writ of summons or complaint[,] the

statute of limitations is tolled only if the plaintiff then makes a good faith

effort to effectuate service.”).

      “What 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 Express, 725 A.2d 792, 796 (Pa. Super.
      1999), appeal denied, 739 A.2d 1058 (Pa. 1999)]; Devine v.
      Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004) (citations
      omitted). “[W]here noncompliance with Lamp is alleged, the
      court must determine in its sound discretion whether a good-
      faith effort to effectuate notice was made.” Farinacci[, 511
      A.2d at 759].


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     In making such a determination, we have explained:

           It is not necessary [that] the plaintiff’s conduct be
           such that it constitutes some bad faith act or overt
           attempt to delay before the rule of Lamp will apply.
           Simple     neglect  and    mistake   to    fulfill the
           responsibility to see that requirements for service
           are carried out may be sufficient to bring the rule in
           Lamp to bear. Thus, conduct that is unintentional
           that works to delay the defendant’s notice of the
           action may constitute a lack of good faith on the part
           of the plaintiff.

     Devine, [863 A.2d at 1168 (citation omitted)].

Englert, 932 A.2d at 124-25. Additionally, the plaintiff bears the burden of

demonstrating that he made reasonable efforts to notify the defendant. See

Devine, 863 A.2d at 1168.

     Our Supreme Court’s recent decision in McCreesh v. City of

Philadelphia, 888 A.2d 664 (Pa. 2005), clarified “what constitutes a good

faith effort by a plaintiff to effectuate notice to a defendant of the

commencement of an action.” Id. at 665.

     The Court reviewed the rules set forth in Lamp and Farinacci as
     well as the appellate decisions which followed. It also reiterated
     the well-established principle that the “purpose of any statute of
     limitations is to expedite litigation and thus discourage delay and
     the presentation of stale claims which may greatly prejudice the
     defense of such claims.” [Id. at 671] (citation omitted). The
     Court further observed that, “once the action has been
     commenced, the defendant must be provided notice of the action
     in order for the purpose of the statutes of limitations to be
     fulfilled.” [Id.] It quoted Lamp’s holding 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.” [Id. at 672 (quoting Lamp, 366 A.2d at 889)]. The


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      Court also noted that it had “subtly altered” its holding in Lamp
      in Farinacci by “requiring plaintiffs to demonstrate ‘a good-faith
      effort to effectuate notice of commencement of the action.’”
      [McCreesh, 888 A.2d at 672 (quoting Farinacci, 511 A.2d at
      759)]. The inquiry into “whether a plaintiff acted in good faith
      lies within the sound discretion of the trial court.” [McCreesh,
      888 A.2d at 672].

      The McCreesh Court explained that it was “merely reanimating
      the purpose” of Lamp, and it approved of an approach which
      would dismiss a plaintiff’s complaint where he or she either
      “demonstrated an intent to stall the judicial machinery” or where
      his or her noncompliance with the procedural rules resulted in
      prejudice. [Id. at 674]. In other words, the Court concluded
      that where a plaintiff “has satisfied the purpose of the statute of
      limitations by supplying a defendant with actual notice,”
      noncompliance with the Rules would be excused under Lamp.
      [Id.]

Englert, 932 A.2d at 125-26.

      Here, Nicolas filed the Writ of Summons nearly two years after the

damage occurred, and just nine days before the statute of limitations

expired. See 42 Pa.C.S.A. § 5524. The record reflects that neither the Writ

of Summons nor the original Complaint was served on Zolner within 30 days

of filing, as required by Pa.R.C.P. 401(a).      Zolner was served with the

Complaint on February 29, 2016, approximately 2½ years after the statute

of limitations had expired. There is no evidence that Nicholas made a good

faith effort to effectuate notice during that 2½-year period. See Ferrara v.

Hoover, 636 A.2d 1151, 1152 (Pa. Super. 1994) (stating that “a plaintiff’s

failure to make a good faith effort to notify the defendant will serve to nullify

both the commencement of the action and the tolling of the statute of

limitations.” (citation, quotation marks, and brackets omitted)).


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      Moreover, Nicolas’s argument that his dealings with Erie put Zolner on

actual notice of the litigation is without merit. See id. at 1153 (concluding

that there is no merit to appellant’s contention that “communication between

appellant and appellees’ insurance adjuster serves as a substitute for actual

service of process.”). Even assuming that Erie qualifies as Zolner’s agent,

actual notice of the potential for litigation is not sufficient. Rather, Zolner

must have actual notice of the commencement of litigation to satisfy the

Lamp rule. See McCreesh, 888 A.2d at 672 n.17 (observing that claims

could be dismissed where the defendant “had notice of the potential for

litigation, [but] it did not have actual notice of the commencement of the

litigation within the statute of limitations period.”); see also Englert, 932

A.2d at 127 (stating that “[a]ppellants did not provide [a]ppellees with

actual notice of the commencement of the action within the applicable

statute of limitations. Instead, [a]pellees had only notice that there was a

potential for litigation, which is not the same and cannot suffice.” (footnote

omitted)).    Although Nicolas justifies the delay in service based on a

purported agreement with Erie to avoid the involvement of defense

attorneys, Nicolas never made a good faith attempt to serve Zolner, and his

lack of diligence demonstrated an intent to stall the judicial machinery. See

Englert, 932 A.2d at 126-27 (concluding that the plaintiffs’ inaction in

properly serving the writ upon the defendant prior to the expiration of the

statute of limitations demonstrated an intent to stall the judicial machinery);



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Devine, 863 A.2d at 1168 (stating that “the mere filing of a writ or

complaint without additional affirmative action to effectuate timely service of

process       …    does not constitute      good faith efforts     under   Lamp….”).

Therefore, we conclude that the trial court did not abuse its discretion in

finding that Nicolas failed to satisfy the good-faith effort requirement of

Lamp and McCreesh.

       In the alternative, Nicolas argues that Zolner failed to show that she

suffered any prejudice. However, an inquiry into prejudice was unnecessary

under these circumstances. See McCreesh, 888 A.2d at 674 (stating that

plaintiff’s       claims   could   be   dismissed   only   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.”) (emphasis added). Indeed, since (a) Nicolas did not establish

that he had engaged in a good-faith effort to secure service upon Zolner in a

timely manner; (b) service was not accomplished within the statute of

limitations; and (c) there was no actual notice of the commencement of

litigation, it was unnecessary to consider whether Zolner had suffered any




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J-A15037-17


prejudice.4

      Based upon the foregoing, we conclude that there is no basis to

disturb the trial court’s Order granting Zolner’s Preliminary Objections and

dismissing the Complaint, with prejudice.     See Englert, 932 A.2d at 128

(concluding that summary judgment was properly entered where appellants

could not pursue their negligence claim due to their failure to demonstrate a

good faith effort to effectuate service within the statute of limitations); see

also Cahill v. Schults, 643 A.2d 121, 123 (Pa. Super. 1994) (stating that

“[t]he mere filing of a praecipe for a writ of summons, without additional

affirmative action to effect service of the writ, does not constitute a good

faith effort to notify a defendant that he is being sued, and therefore is not

sufficient to toll the statute of limitations and preserve a cause of action.”

(citation omitted)).

      Order affirmed.




4
   While the McCreesh Court stated these grounds are disjunctive, it
analyzed both prongs. McCreesh, 888 A.2d at 674; see also Englert, 932
A.2d at 127, n.5 (addressing both prongs of the test set forth in McCreesh).
Even if we were to address the prejudice prong, we would conclude that
Zolner was prejudiced by the delay in Nicolas’s notification of the action until
nearly 2½ years after the applicable statute of limitations had expired, and
nearly 4½ years after the damage occurred. See Englert, 932 A.2d at 127
(concluding that appellees were prejudiced because they were not provided
actual notice of the action until after the statute of limitations had expired);
see also McCreesh, 888 A.2d at 671 (stating that the purpose of the
statute of limitations is to expedite litigation and discourage the presentation
of stale claims that would prejudice the defense of such claims).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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