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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J. THOMAS GRABLE                                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

CRAIG PHILLIPS D/B/A PHILLIPS
CONSTRUCTION AND SCOTT PHILLIPS

                                                      No. 1863 WDA 2015


                  Appeal from the Order October 26, 2015
            In the Court of Common Pleas of Washington County
                     Civil Division at No(s): 2012-2165


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                       FILED SEPTEMBER 28, 2016

      Appellant, J. Thomas Grable, appeals from the order granting

summary judgment to Appellee, Scott Phillips, based upon a finding that

Grable had not provided actual notice of the institution of legal proceedings

to Phillips. Grable argues that the trial court abused its discretion in finding a

lack of actual notice when Phillips has never disputed actual notice, either in

pleadings or in argument. After careful review, we agree with Grable that

the trial court abused its discretion. We vacate and remand for further

proceedings.

      The procedural history necessary to resolve this appeal is extensive.

Grable initially filed a writ of summons on April 13, 2012, naming Phillips

and his half-brother, Craig Phillips, as defendants in a civil action. Pursuant
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to instructions from Grable, the Washington County Sheriff’s Office served

the writ on Craig Phillips, personally, at 340 Varner Lane, a property owned

by Craig. The sheriff’s return of service indicated that it had served Scott

Phillips by personally handing a copy to Craig Phillips. The return of service

indicates that 340 Varner Lane was the home of Scott Phillips, even though

the instructions provided by Grable did not identify 340 Varner Lane as such.

      Shortly thereafter, Grable filed a complaint alleging that Craig and

Scott Phillips had broken down the front door of his residence and physically

assaulted him. Craig filed an answer and new matter, and indicated that

Scott had never resided at 340 Varner Lane. Grable subsequently mailed the

complaint to Scott at an address of 1102 Overlook Drive via certified mail,

return receipt requested, and first class mail.

      The complaint sent by certified mail was returned as unclaimed. The

complaint sent by first class mail was not returned. Grable then entered a

default judgment against Scott. In his praecipe for default judgment, Grable

conceded that the judgment concerned only liability, and that damages

would be assessed after litigation.

      Grable litigated his claims against Scott and Craig before a board of

arbitrators. The arbitrators returned a verdict of $2,500 against Scott.

Grable appealed the award to the Court of Common Pleas.

      In furtherance of this appeal, Grable filed an amended complaint

asserting a new theory of joint liability. In the affidavit of service, Grable


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asserted that he had served Scott via first class mail at 1102 Overlook Drive.

On August 8, 2013, Grable entered default judgment against Scott Phillips,

asserting that he had served notice of his intent to enter default judgment to

Scott via first class mail to 1102 Overlook Drive.

      After a non-binding mini-jury trial, Grable and Craig Phillips settled

Grable’s claims against Craig. The case proceeded to a damages hearing

against Scott, which resulted in a verdict against Scott of $6,177.32. Grable

then praeciped to enter judgment on the verdict on July 8, 2014. He served

notice of this praecipe on Scott via first class mail at 385 Taylor Avenue.

      On October 7, 2014, Scott, through the same law firm utilized by Craig

in this litigation, filed a petition to strike the default judgment. In this

petition, he alleged that he had never resided at 340 Varner Lane, and

further, that he had never been served notice of the litigation pursuant to

Pa.R.C.P. 402. The trial court subsequently struck the default judgment on

December 24, 2014.

      After the judgment was struck, Scott’s counsel declined to accept

service on Scott’s behalf. Grable employed the Washington County Sheriff’s

Office to secure service, but after nine attempts at service failed, Grable

moved for permission to effect alternative service. The trial court granted

the request, and on April 9, 2015, Grable mailed, via certified and first class

mail, two copies of the original writ of summons to Scott at 385 Taylor

Avenue. The copy sent through certified mail was returned as “unclaimed”


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on May 4, 2015. However, the copy sent by first class mail was not returned.

The next day Grable filed a return of service and proceeded to mail the

amended complaint to Scott’s counsel.

       Eleven days later, Scott filed an answer and new matter, raising the

statute of limitations as a defense. In his answer, Scott admitted that his

current address was 385 Taylor Avenue.

       Shortly thereafter, Scott filed a motion for summary judgment

asserting that Grable had “never properly served … Scott Phillips.”

Defendant’s Motion for Summary Judgment, 7/16/15, at ¶ 2. As result, Scott

moved for relief under the statute of limitations.1 The trial court granted

summary judgment, noting that it “need not reach the issue of whether

Grable’s attempts to secure service were in good-faith, we hold that Grable’s

claim is time-barred … because Grable did not supply [Scott] actual notice of

the suit until well after the expiration of the limitation period.” This timely

appeal followed.

       On appeal, Grable argues that the trial court erred in granting

summary judgment. We review a challenge to the entry of summary

judgment as follows.

       [We] may disturb the order of the trial court only where it is
       established that the court committed an error of law or abused
       its discretion. As with all questions of law, our review is plenary.
____________________________________________


1
  Grable concedes that the applicable statute of limitations for his claims
against Scott is two years.



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      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).

      The trial court premised its decision upon its finding that Grable had

not met his duty to initiate the case within the two years of the tortious

conduct. The amended complaint identifies April 14, 2010, as the operative

date for the start of the limitations period. Thus, Grable was required to file

either a writ of summons or a complaint by April 14, 2012 to satisfy the

statute.

      It is undisputed that Grable filed a writ of summons on April 13, 2012,

satisfying the statute. In order to perfect jurisdiction, however, our Rules of

Civil Procedure require a plaintiff to serve opposing parties with initial

process within thirty days of filing. See Pa.R.C.P. 401(a).

      In Washington County, original service must be made through the

services of a sheriff. See Pa.R.C.P. 400(a). It is undisputed that Grable

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utilized the services of the Washington County Sheriff’s Office in seeking

service of the writ of summons on Scott and Craig as required by Rule

400(a). Furthermore, it is undisputed that service was successfully effected

upon Craig.

      The dispute centers on the effect of the sheriff’s return of service for

the writ of summons on Scott. In Lamp v. Heyman, 366 A.2d 882 (Pa.

1976), our Supreme Court held that a writ of summons remains effective to

commence an action, and thereby toll the statute of limitations, “if the

plaintiff ... 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.

      Thereafter, the Court held that “Lamp requires of plaintiffs a good-

faith effort to effectuate notice of commencement of the action.” Farinacci

v. Blair County Ind. Dev. Auth., 511 A.2d 757, 759 (Pa. 1986). The

Supreme Court clarified what constitutes a good faith effort by a plaintiff to

effectuate notice to a defendant of the commencement of an action:

      Neither our cases nor our rules contemplate punishing a plaintiff
      for technical missteps where he has satisfied the purpose of the
      statute of limitations by supplying a defendant with actual
      notice. Therefore, we embrace the logic of the Leidich [v.
      Franklin, 575 A.2d 914 (Pa. Super. 1990), appeal denied, 584
      A.2d 319 (Pa. 1990)] line of cases, which, applying Lamp, would
      dismiss only those claims 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.




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McCreesh v. City of Philadelphia, 888 A.2d 664, 674 (Pa. 2005) (footnote

omitted). The determination of “whether a plaintiff acted in good faith lies

within the sound discretion of the trial court.” Id., at 672.

      The return indicated that the sheriff personally handed a copy of the

writ of summons to Craig, noting that 340 Varner Lane was Scott’s

residence. Nothing of record establishes how the sheriff came to believe that

Scott resided at 340 Varner Lane.

      In his motion for summary judgment, Scott simply alleged that “[w]ith

proper service being effectuated over five years after the alleged assault,

[Scott] asserts that service was not completed within a reasonable period of

time and the statute of limitations has expired.” Defendant’s Motion for

Summary Judgment, 7/16/15, at ¶ 10. The motion referenced neither actual

notice nor good faith effort.

      In his brief in support of the motion, Scott did not explicitly argue that

he did not have actual notice of the initiation of the suit. In fact, he

conceded that Craig’s counsel “notified them [Craig and Scott] immediately

that service by the Sheriff on Scott’s brother Craig at Craig’s residence was

not proper service on Scott because he did not live there or work for his

brother, Craig.” Brief in Support of Defendant’s Motion for Summary

Judgment, 9/14/15, at 8. Scott’s argument focused on whether Grable had

made a good faith effort to effect service in a timely manner. Despite this,

the trial court held that it “need not reach the issue of whether Grable’s


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attempts to secure service were in good-faith, we hold that Grable’s claim is

time-barred … because Grable did not supply [Scott with] actual notice of

the suit until well after the expiration of the limitation period.” Trial Court

Opinion, 10/26/15, at 6.

      We conclude that this reasoning constitutes an abuse of the trial

court’s wide discretion in this matter. As Grable notes on appeal,

Pennsylvania law discourages courts from granting summary judgment on

an issue that the court raised sua sponte. See Yount v. Pennsylvania

Department of Corrections, 966 A.2d 1115, 1118-1119 (Pa. 2009). This

policy is

      grounded in a concern that trial courts should not act as the
      defendant’s advocate. For a trial court to raise an argument sua
      sponte and grant summary judgment thereon risks depriving the
      court the benefit of advocacy on the issue, and depriving the
      parties the opportunity to be heard.

See id., at 1119.

      Here, the trial court not only raised the issue sua sponte, but raised an

issue that the defendant had conceded in his brief to the trial court. While

the trial court has wide discretion under McCreesh in making factual

findings, the discretion does not extend so far as to contradict facts that the

parties themselves do not dispute. The trial court’s finding that Scott did not

have actual notice of the initiation of proceedings is contrary to the positions

taken by the parties themselves. We are therefore constrained to vacate the

order granting summary judgment.


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     At this point, it is necessary for the trial court to address the issue

actually raised by Scott in his motion for summary judgment: whether

Grable made a good-faith effort to secure timely service. As noted above,

this determination lies within the discretion of the trial court. We therefore

remand this case to the trial court for further proceedings consistent with

this memorandum.

     Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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