J-S24036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LOU ANN PARSONS,                          :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                  Appellant               :
                                          :
             v.                           :
                                          :
ROSE VALLEY PARTNERSHIP, INC., THE        :
ARC OF LEHIGH & NORTHAMPTON               :
COUNTIES, a/k/a ARC OF LEHIGH &           :
NORTHAMPTON COUNTIES, RUSTY               :
SMITH EXCAVATING & PAVING, INC.,          :
                                          :
                  Appellees               :           No. 3157 EDA 2014

              Appeal from the Order entered on October 3, 2014
               in the Court of Common Pleas of Lehigh County,
                        Civil Division, No. 2013-C-1579

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 12, 2015

     Lou Ann Parsons (“Parsons”) appeals from the trial court’s Order

sustaining the Amended Preliminary Objections of Rose Valley Partnership,

Inc. (“Rose Valley”), the Supplemental Preliminary Objections of Rusty Smith

Excavating & Paving, Inc. (“Rusty Smith”), and dismissing the Preliminary

Objections of The ARC of Lehigh & Northampton Counties, a/k/a ARC of

Lehigh & Northampton Counties (“ARC”), as moot.         In its Order, the trial

court also struck Parsons’s Writ of Summons and dismissed her Complaint.

We affirm.

     The trial court set forth the relevant underlying facts as follows:

     In May of 2011, [Rose Valley] was the owner and lessor of a
     building located in Lehigh County at 2298 Avenue A, Allentown,
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     Pennsylvania. [ARC] was an entity registered to do business in
     Pennsylvania at that location. [Rusty Smith] was an excavating
     and paving company [that] was engaged in the maintenance and
     management of the property located at the address.

     On or about May 6, 2011, [Parsons] was walking on the parking
     lot in the rear of the mentioned property. [Parsons] claimed that
     the paved parking lot was several inches higher than an unpaved
     area that contained no warnings; she fell and had resulting
     injuries. [Parsons] argues that the unlevel parking lot was in a
     dangerous and unsafe condition because it was carelessly and
     negligently permitted to exist beyond the time required for its
     discovery.

     … [Parsons] commenced [an] action by filing a Praecipe for Writ
     of Summons on May 3, 2013, three days before the running of
     the statute of limitation.[1] Thereafter, a Praecipe to Reissue the
     Writ was filed on May 17, 2013; June 17, 2013; July 17, 2013;
     August 16, 2013; September 16, 2013; October 16, 2013;
     November 15, 2013; December 16, 2013; January 15, 2014;
     February 14, 2014; and March 18, 2014. The Complaint was
     finally filed on March 31, 2014. … [N]o attempt to serve [Rose
     Valley, Rusty Smith, and ARC (collectively “the Defendants”)]
     was made [until April 2014, following the filing of the
     Complaint]. [Parsons] did not deliver the Writ to the sheriff for
     service and explained that the delay or lack of service upon the
     Defendants was because counsel needed more time to prepare
     the case. …

     Although there was no direct contact with [the] Defendants,
     [Parsons] contacted [the] Defendants’ liability carriers on or
     about January 28, 2014. [Parsons] … awaited response from the
     insurance carriers until February 2014[,] and then proceeded to
     file the Complaint.

Trial Court Opinion, 10/3/14, at 3-4 (footnotes and citations omitted,

footnote added).

1
  See 42 Pa.C.S.A. § 5524(7) (stating that “[a]ny other action or proceeding
to recover damages for injury to person or property which is founded on
negligent, intentional, or otherwise tortious conduct or any other action or
proceeding sounding in trespass, including deceit or fraud, …” must be
commenced within two years).


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     On April 16, 2014, Parsons filed a Praecipe to Reinstate a Complaint.

In   response,    the        Defendants   each       filed   Preliminary     Objections.

Subsequently, Rose Valley filed Amended Preliminary Objections and Rusty

Smith filed Supplemental Preliminary Objections. The Defendants sought to

dismiss Parsons’s claims for her failure to make a reasonable effort to

effectuate service upon the Defendants and place them on notice of the suit.

Following a hearing, the trial court sustained the Amended Preliminary

Objections of Rose Valley and the Supplemental Preliminary Objections of

Rusty Smith, dismissed as moot ARC’s Preliminary Objections, and ordered

Parsons’s Writ of Summons stricken and the Complaint dismissed.

     Parsons     filed   a    timely   Notice   of   Appeal    and   a     court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

     On appeal, Parsons raises the following questions for our review:

     1.   Did the trial court [err] in requiring [Parsons] to serve a
          Writ of Summons, within 30 days of filing, on [] Rusty
          Smith[,] who had moved and left no forwarding address?

     2.   Did the trial court [err] in placing the burden of proof on
          [Parsons] to show that [the Defendants] suffered harm from
          the delay in service?

     3.   Did the trial court [err] in not considering the evidence
          presented at the McCreesh v. City of Philadelphia, [888
          A.2d 664 (Pa. 2005)] hearing?

     4.   Did the trial court [err] in assuming a fact not in evidence
          when it said the scene of the accident had changed?

     5.   Did the trial court [err] when it scheduled the McCreesh
          hearing to take place within seven days[,] denying



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          [Parsons] an opportunity      to   conduct   discovery   and
          subpoena witnesses?

     6.   Did the trial court [err] when it allowed [the Defendants] to
          be absent from the McCreesh hearing?

     7.   Did the trial court [err] when it demanded additional
          argument on the Preliminary Objections at the McCreesh
          hearing[,] without giving [Parsons] notice[,] and allowed
          the [Defendants] to discuss uncited law that was not
          contained in the briefs?

     8.   Did the trial court [err] when it allowed [ARC] to amend its
          brief months after argument[,] without requesting
          permission from the court?

     9.   Did the trial court [err] when it ended its normal practices
          of dismissing Lamp v. Heyman, [366 A.2d 882 (Pa. 1976)]
          Preliminary Objections without argument or hearing?

     10. Did the trial court [err] when it improperly struck
         [Parsons’s] Writ of Summons and dismissed [Parsons’s]
         Complaint using the Lamp test of service rather than the
         McCreesh test of notice and harm?

     11. Did the trial court [err] when it improperly struck
         [Parsons’s] Writ of Summons and dismissed [Parsons’s]
         Complaint without ruling on the Preliminary Objections of
         [ARC]?

     12. Did the trial court [err] when it considered the Preliminary
         Objections of [] Rusty Smith and [ARC] that were untimely?

     13. Did the trial court [err] when it placed burdens on [Parsons]
         to take actions prior to the filing of the Writ of Summons?

     14. Did the trial court [err] when it did not consider the public
         interest of encouraging the settlement of such cases?

     15. Did the trial court [err] when [it] failed to [e]nlarge the
         [t]ime [p]eriod [i]nitially [s]pecified or [p]ermit an
         [a]mended or [s]upplemental [s]tatement to be filed
         because the transcript in this matter is not prepared[, and



                                -4-
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            Parsons] paid the Court Reporter the required fee when the
            Notice of Appeal was filed?

Brief for Appellant at 2-5.

      We review of a challenge to a trial court’s grant of preliminary

objections under the following standard:

      [O]ur standard of review of an order of the trial court overruling
      or granting preliminary objections is to determine whether the
      trial court committed an error of law. When considering the
      appropriateness of a ruling on preliminary objections, the
      appellate court must apply the same standard as the trial court.

      Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint.       When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.      Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases
      in which it is clear and free from doubt that the pleader will be
      unable to prove facts legally sufficient to establish the right to
      relief. If any doubt exists as to whether a demurrer should be
      sustained, it should be resolved in favor of overruling the
      preliminary objections.

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation

omitted).

      Preliminarily, we note that in her brief, Parsons has set forth single

paragraph arguments relating to claims four, five, six, eleven, thirteen,

fourteen, and fifteen, that are not fully developed and that lack citations to

any case law. It is well-settled that “[t]he argument portion of an appellate

brief must include a pertinent discussion of the particular point raised along

with discussion and citation of pertinent authorities.”      In re Estate of

Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (citation omitted); see also


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Pa.R.A.P.   2119(a)   (stating   that   the   argument   should   include   “such

discussion and citation of authorities as are deemed pertinent.”).            An

argument that fails to cite to relevant case or statutory authority

“constitutes waiver of the claim on appeal.” In re Estate of Whitley, 50

A.3d at 209. Thus, based upon Parsons’s failure to cite any legal authority

in support of these bald arguments, we deem the claims waived on appeal.

See id. at 210.

      In her first, second, third, and tenth claims, Parsons raises issues

related to the trial court’s grant of the Defendants’ various preliminary

objections for failing to provide proper notice of Parsons’s action. Parsons

contends that the trial court erred in requiring her to serve the Writ of

Summons on Rusty Smith within 30 days of filing. Brief for Appellant at 8.

Parsons argues that Rusty Smith moved and did not leave a forwarding

address. Id. Parsons asserts that serving the Writ of Summons without the

benefit of an address constitutes a waste of money and time. Id. at 9.

      Parsons also contends that the trial court erred in placing the burden

of proof on her to demonstrate that the Defendants suffered harm from the

delay in service. Id. Parsons further argues that at the hearing, the trial

court should have considered evidence, including that she had retained

counsel shortly before the statute of limitations expired and that counsel was

preparing the case. Id. at 10. Parsons asserts that her counsel also sent




                                   -6-
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the Writ of Summons to the Defendants’ insurance carriers, as evidence that

the Defendants had notice of the action. Id.

     Parsons additionally claims that the trial court erred when it struck her

Writ of Summons and dismissed her Complaint under the test set forth in

Lamp. Id. at 13. Parsons asserts that the trial court should have utilized

the test set forth in McCreesh, which required a finding of no actual notice

and prejudice to the Defendants. Id. at 14.

     Pennsylvania Rule of Civil Procedure 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 or outside the
     Commonwealth within the time prescribed by Rule 404, 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


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      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).

      Our Court has set forth the relevant legal precepts regarding

effectuation of service of original process as follows:

      [P]ursuant to Lamp, and Farinacci v. Beaver County
      Industrial Development Authority, 510 Pa. 589, 511 A.2d
      757 (1986), th[e] service of original process completes the
      progression of events by which an action is commenced. Once
      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. Moses v. T.N.T. Red
      Star Express, 725 A.2d 792 (Pa. Super. 1999), appeal denied,
      559 Pa. 692, 739 A.2d 1058 (1999). “What constitutes a ‘good
      faith’ effort to serve legal process is a matter to be assessed on
      a case by case basis.” Id. at 796; 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 at 594, 511 A.2d at 759.

      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, supra at 1168 (quoting Rosenberg v. Nicholson, 408
      Pa.Super. 502, 597 A.2d 145, 148 (1991), appeal denied, 530
      Pa. 633, 606 A.2d 903 (1992)).     “[A]lthough there is no
      mechanical approach to be applied in determining what


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     constitutes a good faith effort, it is the plaintiff’s burden to
     demonstrate that his efforts were reasonable.” Bigansky v.
     Thomas Jefferson University Hospital, 442 Pa.Super. 69,
     658 A.2d 423, 433 (1995), appeal denied, 542 Pa. 655, 668
     A.2d 1119 (1995).

                                    ***

     [Our Supreme Court’s recent decision in McCreesh clarified
     “what constitutes a good faith effort by a plaintiff to effectuate
     notice to a defendant of the commencement of an action.”
     McCreesh, 888 A.2d 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. at 671]. 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 at 478, 366 A.2d at 889). The 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
     at 224, 888 A.2d at 672 (quoting Farinacci at 594, 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 at
     224, 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 227, 888 A.2d 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. at 227, 888 A.2d at 674.


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Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122, 124-26 (Pa. Super.

2007).

      Contrary to Parsons’s argument, McCreesh did not overrule Lamp,

but instead clarified “what constitutes a good faith effort by a plaintiff to

effectuate notice to a defendant of the commencement of an action.”

McCreesh, 888 A.2d at 665; see also id. at 672. In the instant case, the

record reflects that Parsons never requested service of the Writ of Summons

by the sheriff when it was initially filed or the eleven times it was reinstated.

See Trial Court Opinion, 10/3/14, at 8 (finding that there was no evidence of

any effort by Parsons to provide timely service of the Writ of Summons upon

the Defendants). There is no evidence that Parsons provided a copy of the

Writ to the Defendants by any other manner, or otherwise put the

Defendants on notice of the action until approximately one year after the

statute of limitations had expired, when a copy of the Complaint was served

on the Defendants. See Moses, 725 A.2d at 797 (stating that “[t]aking no

steps whatsoever to serve the writ of summons once having filed a praecipe

for its issuance renders subsequent efforts to initiate the cause of action

after the statute of limitations has run a ‘nullity.’”).

      Moreover, Parsons’s argument that her dealings with the insurance

companies, which transpired following the expiration of the statute of

limitations, put the Defendants on actual notice of the litigation is without

merit.   See Ferrara v. Hoover, 636 A.2d 1151, 1153 (Pa. Super. 1994)


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(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 the

insurance companies qualify as Defendants’ agents, actual notice of the

potential for litigation is not sufficient; the Defendants 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.”); Englert, 932 A.2d at 127 (same). Although

Parsons justifies the delay in service based on Rusty Smith’s change of

address and the late hiring of her attorney, Parsons never made a good faith

attempt to serve the Defendants and her 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 judiciary machinery); Devine, 863 A.2d at 1168

(stating that appellant’s conduct in failing to fulfill the requirements of

service amounted to neglect).          Therefore, Parsons’s conduct cannot be

considered a technical misstep, and we conclude that the trial court did not

abuse its discretion in finding that Parsons had failed to satisfy the good-

faith effort requirement of Lamp and McCreesh.



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      In the alternative, Parsons argues that the trial court erred in failing to

consider whether the Defendants had 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) Parsons did not establish that she had engaged in a good-faith

effort to secure service upon the Defendants 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 the Defendants had suffered any prejudice.2

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

disturb the trial court’s grant of the various preliminary objections and

dismissal of the action.   See Englert, 932 A.2d at 128 (concluding that

summary judgment was properly entered where appellants could not pursue

2
   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 (addressing each bases of the test set forth in McCreesh).
Even if we were to address the prejudice prong, we would conclude that the
Defendants were prejudiced by the delay in Parsons’s notification of the
action. The Defendants were not notified of the action until nearly one year
after the statute of limitations had expired. 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 by such claims).


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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); Ferrara, 636 A.2d at 1153 (stating that appellees “have a

reasonable expectation to assure that once the statute of limitations has run

they will no longer shoulder the burden of possible litigation.”).3

        In her eighth and twelfth claims on appeal, Parsons challenges the

timeliness of the Preliminary Objections filed by ARC and Rusty Smith. 4

Brief for Appellant at 12-13, 15-17. Parsons contends that the sheriff served

the Complaint on ARC on April 14, 2014, but ARC did not file its Preliminary

Objections until May 16, 2014, well over the twenty-day limit to file

preliminary objections.    Id. at 12, 15.    Parsons further contends that the

3
   We note that the trial court, without explanation, dismissed ARC’s
Preliminary Objections as moot despite the fact that Parsons raised separate
claims against Rusty Smith, Rose Valley, and ARC in her Complaint. Cf.
Brief for ARC at 2 n.1 (stating that “[t]he reason for dismissing [ARC’s]
Preliminary Objections as moot appears to be practical; by sustaining the
other preliminary objections, all claims were dismissed.”). Nevertheless, the
trial court struck Parsons’s Writ of Summons and dismissed the Complaint.
Thus, despite erroneously dismissing ARC’s Preliminary Objections as moot,
we conclude that there are no outstanding claims that Parsons may pursue,
as the trial court dismissed the entirety of the action with prejudice.
4
    Parsons does not raise any claims involving Rose Valley in this regard.


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sheriff served the Complaint on Rusty Smith on April 25, 2014, but Rusty

Smith did not file its Preliminary Objections until May 12, 2014, and its

Supplemental Preliminary Objections until May 20, 2014. Id. at 16-17.5

     Pennsylvania Rule of Civil Procedure 1026(a) provides, in relevant

part, that “every pleading subsequent to the complaint shall be filed within

twenty days after service of the preceding pleading.” Pa.R.C.P. 1026(a).

     This twenty day filing period has been interpreted liberally and is
     permissive rather than mandatory. The decision of whether an
     extension of time shall be granted is within the discretion of the
     trial court. A late pleading may be filed if the opposing party is
     not prejudiced and justice requires. Prejudice results when an
     opposing party’s delay causes a party any substantial diminution
     in their ability to present factual information in the event of trial.

Weaver v. Martin, 655 A.2d 180, 183-84 (Pa. Super. 1995) (citations and

quotation marks omitted); see also Liberty Mut. Ins. Co. v. Domtar

Paper Co., 77 A.3d 1282, 1285 (Pa. Super. 2013) (stating that Rule

1026(a) “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.”) (citation omitted).

The party with the burden to establish prejudice must demonstrate that they

were prejudiced “from the fact that the allegations are offered late rather

than on time, and not such prejudice as results from the fact that the

5
  As part of her eighth claim, Parsons also argues that ARC sent the trial
court additional materials following the hearing on the various preliminary
objections. Brief for Appellant at 13. However, other than this bald
statement, Parsons has not set forth any pertinent analysis or citation to
case law to support her proposition. See Pa.R.A.P. 2119(a). Thus, Parsons
has waived this argument. See In re Estate of Whitley, 50 A.3d at 209.


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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) (emphasis in original).

        In the action against Rusty Smith, the sheriff served Parsons’s

Complaint on Rusty Smith on April 25, 2014. N.T., 6/20/14, at 7-8. Rusty

Smith’s original Preliminary Objections were filed on May 12, 2014, well

within the mandated twenty-day period under Rule 1026(a).                 Thus,

Parsons’s claims against Rusty Smith are without support in the record.6

        With regard to ARC, the sheriff served Parsons’s Complaint on ARC on

April 14, 2014. N.T., 6/20/14, at 7. ARC filed its Preliminary Objections on

May 16, 2014, which was twelve days late under Rule 1026(a). However,

Parsons has not argued or demonstrated that she suffered prejudice caused

by the delay in ARC’s filing. See Ambrose, 602 A.2d at 868 (stating that

the trial court did not abuse its discretion in refusing to strike the

defendant’s late-filed preliminary objections where plaintiffs did not aver

that they were prejudiced by the delay); see also Chester Upland Sch.

Dist.    v.   Yesavage,   653   A.2d   1319,   1323-24   (Pa.   Cmwlth.   1994)

(concluding that trial court properly refused to strike the preliminary

objections that were filed eighty-five days late where no allegation of

prejudice based on the late filing was made).



6
  Parsons does not raise any claims regarding Rusty Smith’s filing of
Supplemental Preliminary Objections.


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      In any event, even if the trial court had dismissed ARC’s Preliminary

Objections for being untimely, the issue raised by ARC in the Preliminary

Objections could have been raised in a motion for judgment on the pleadings

or motion for summary judgment. See Liberty Mut. Ins. Co., 77 A.3d at

1286 (stating that even if the trial court had dismissed the appellees’

preliminary objections for being untimely filed, the issues raised by the

appellees “would simply be re-raised on judgment to the pleadings or a

nonsuit.”); see also 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); Ferrara, 636 A.2d at

1153 (concluding that trial court properly granted appellees’ motion for

judgment on the pleadings where appellant’s lack of timely and proper

service of the writ of summons resulted in the action being barred by the

statute of limitations). Thus, we cannot grant Parsons relief on her claims.

      In her seventh claim, Parsons contends that the trial court erred in

demanding additional argument on the various preliminary objections

following the hearing without providing her notice. Brief for Appellant at 12.

Parsons claims that as a result, the Defendants raised legal authority, i.e.,

Ferrara, supra, that was not contained in the briefs supporting the various

preliminary objections. Id.




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      Here, following oral argument on the Defendants’ various preliminary

objections, the trial court scheduled a hearing for June 20, 2014. Trial Court

Order, 6/13/14. At the hearing, Parsons’s attorney testified and introduced

various documents in opposition to the preliminary objections.           N.T.,

6/20/14, at 8-24.       Following the conclusion of the testimony and

introduction of documents, the trial court heard argument from the

attorneys to address the evidence presented at the hearing in the context of

the preliminary objections. Id. at 25. Thereafter, the Defendants’ attorneys

cited case law, including Ferrara, in support of their position. Id. at 25-30,

32-34.

      Based upon this record, we conclude that the trial court did not abuse

its discretion in considering further argument following the hearing. Parsons

has not established how she was prejudiced by the introduction of applicable

case law that was not cited in the briefs supporting the various preliminary

objections. Indeed, Parsons had every opportunity to rebut the arguments

made by the Defendants. Thus, Parsons’s seventh claim is without merit.7

      In her ninth claim, Parsons additionally contends that the “trial court

erred when it ended its normal practice of dismissing [Lamp] preliminary


7
  Parsons asserts that Ferrara is inapplicable in this case because that case
is “about service, not notice.” Brief for Appellant at 12. However, the
Ferrara Court, relying upon Lamp, concluded that the appellant “did not
take any affirmative action to see that the writ was served and to put the
defendant on notice that an action had been filed against him.” Ferrara,
636 A.2d at 1152 (citation omitted). Parsons’s interpretation of Ferrara is
erroneous and does not entitle her relief.


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J-S24036-15


objections without argument or hearing.” Id. at 13. Parsons cites to two

court of common pleas decisions to support her contention. However, it is

well-settled that this Court is not bound by decisions of the courts of

common pleas. Liberty Mut. Ins. Co., 77 A.3d at 1285. Moreover, to the

extent Parsons again argues that the Defendants’ various preliminary

objections were untimely, we conclude that this argument is without merit

based upon the above reasoning. For the foregoing reasons, Parsons’s ninth

claim is without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/12/2015




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