Opinion
J-S03014-17 No. 1099 WDA 2016
03-17-2017
RAYMOND RONK AND MELISSA BENSON Appellants v. JUDITH ISRAEL Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order June 27, 2016
In the Court of Common Pleas of Blair County
Civil Division at No(s): 2013 GN 2650 BEFORE: OLSON, SOLANO and STRASSBURGER, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
Appellants, Raymond Ronk and Melissa Benson, appeal from the order entered on June 27, 2016, granting a motion for summary judgment filed by Judith Israel (Israel). Upon careful consideration, we affirm.
The trial court summarized the facts and procedural history of this case as follows:
This case involves a negligence action between former neighbors. [Appellants] claim[ed] that on or about September 2, 2012, a fire originated at [Israel's] home located at 303 Lexington Avenue, Altoona, Blair County, Pennsylvania and spread to their residence located at 301 Lexington Avenue. The [c]omplaint aver[red] that [Israel] failed to remove accumulated debris and rubbish from under an air conditioning unit. [Appellants] claim[ed] that this underbrush caused the unit to malfunction and catch fire, allegedly spreading to [Israel's] home and in turn to [Appellants'] home. Both homes were destroyed in the incident.
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[Appellants] commenced this action by filing a [p]raecipe for a [w]rit of [s]ummons on September 3, 2013. [The trial court] subsequently issued an [a]lternative [s]ervice [o]rder on April 16, 2014, directing [Appellants] to reinstate the [w]rit within fifteen days of the [o]rder and serve the [w]rit within thirty (30) days of reinstatement. [Appellants] filed a [p]raecipe to [r]einstate [w]rit of [s]ummons on May 1, 2014. [The trial court] issued another [a]lternative [s]ervice [o]rder on July 25, 2014, followed by an [a]mended [w]rit of [s]ummons on August 14, 2014, adding Melissa Benson as a [p]laintiff. [Appellants'] attorney, Michael B. Cohen, then delivered the [w]rit to the Blair County Sheriff's Department ("BCSD") on August 14, directing the Sheriff to serve [] Israel at [her former residence located at] 303 Lexington Avenue, Altoona, PA 16601. Deputy Markle of the BCSD then attempted to serve the [w]rit on September 2, 2014, only to find a vacant lot.
[Appellants] subsequently reinstated the [w]rit again on October 6, 2014 and November 10, 2014. On November 10, 2014, Attorney Cohen directed the BCSD to serve the [w]rit once more, this time upon Judith Kramer of 2217 10th Street, Altoona, PA 16601. On November 18, 2014, Attorney Cohen sent a facsimile to the BCSD, correcting [d]efendant's name from "Kramer" to "Israel." The BCSD subsequently made three unsuccessful attempts to serve the [w]rit at the 10th Street address on November 19, 20, and 21.
On March 11, 2015, [the trial court] issued another [a]lternative [s]ervice [o]rder, directing [Appellants] to reinstate the [w]rit within fifteen (15) days and serve the reinstated [w]rit within thirty (30) days. Eight days later, Attorney Cohen filed a [p]roof of [s]ervice with [the trial court], certifying that [Israel] picked up the [w]rit from the BCSD office on November 24, 2014. Attorney Cohen attached a [s]heriff's [r]eturn [p]rocess [r]eceipt to his correspondence, which indicates that [Israel] picked up the [w]rit on November 24, 2014.
Subsequently, [the trial court] issued a [w]rit [n]otice on July 20, 2015, directing [Appellants] to file their [c]omplaint within thirty (30) days. [Appellants] complied and filed
their [c]omplaint on August 17, 2015. Attorneys [Thomas] Birris and [Joseph] Lesinski entered their appearances on behalf of [Israel] on October 19, 2015. [The trial court] then issued a [d]efault [j]udgment [n]otice on October 27, 2015, advising [all] parties that [the trial court] had not received an answer and [Appellants] had not filed a praecipe for default judgment. [Israel] subsequently filed her [a]nswer on November 30, 2015.Trial Court Opinion, 6/27/2016, at 1-3.
[Israel] filed a [m]otion for [s]ummary [j]udgment and supplementing brief on March 10, 2016. According to [Israel], [Appellants] failed to meet the statute of limitations for [a] negligence claim. [Appellants] filed a [b]rief in [o]pposition on April 8, 2016.
By order and accompanying opinion entered on June 27, 2016, the trial court granted Israel's motion for summary judgment. This timely appeal resulted.
Appellants filed a notice of appeal on July 27, 2016. On August 2, 2016, the trial court filed a letter with the Prothonotary indicating that it had received the notice of appeal and "stand[s] on the record." Trial Court Letter to Prothonotary, 8/2/2016, at 1. --------
On appeal, Appellants present the following issue for our review:
I. Did the trial court err in granting [Israel's] motion for summary judgment on the grounds that the action was barred by the applicable two-year statute of limitations?Appellant's Brief at 7 (complete capitalization omitted).
Appellants recognize that "[a]n action or proceeding to recover damages for injury that is founded on negligent tortious conduct is subject to a two-year statute of limitations." Id. at 17, citing 42 Pa.C.S.A. § 5524. Appellants argue that once they filed a praecipe for a writ of summons to commence the action and made a good faith effort to serve it, the statute of limitations was tolled. Id. More specifically, Appellants argue:
an amended writ of summons was issued on August 15, 2014, eighteen (18) days before the running of the two-year statute of limitations period, and forwarded to the Sheriff for service on or about August 25, 2014. [T]his technically tolled the statute, extending the statute of limitations on their action for two years from the date of filing. The Sheriff attempted to serve the writ on [Israel] at her last known address, which turned out to be a vacant lot, and filed a return of no-service on or about September 5, 2014. [Appellants] subsequently reissued the writ on or about October 6, 2014. [Appellants] learned of [Israel's] current address on or about November 10, 2014, and reissued the writ on or about November 12, 2014. The Sheriff attempted to serve the writ at that address, unsuccessfully, on November 19, 20, and 21, 2014. Subsequently, on November 24, 2014, [Israel] came to the Sheriff's office and picked up the writ, herself. Thus, over a mere three (3) month time period, [Appellants] attempted to serve the writ four (4) times.Id. at 22-23.
We have stated:
our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.
Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so
clear that reasonable minds could not differ can a trial court properly enter summary judgment.Morgan v. Petroleum Products Equipment Co., 92 A.3d 823, 827 (Pa. Super. 2014) (internal citation and brackets omitted).
The applicable statute of limitations for actions to recover damages for negligence is two years. 42 Pa.C.S.A. § 5524(2). It is well-settled in this Commonwealth that
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. What constitutes a "good faith" effort to serve legal process is a matter to be assessed on a case by case basis. Where noncompliance [] is alleged, the court must determine in its sound discretion whether a good-faith effort to effectuate notice was made.
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[]. Simple neglect and mistake to fulfill the responsibility to see that requirements for service are carried out may be sufficient[]. 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.
Englert v. Fazio Mechanical Services , Inc., 932 A.2d 122, 124-125 (Pa. Super. 2007) (internal citations, quotations, and original brackets omitted).
Although there is no mechanical approach to be applied in determining what constitutes a good faith effort, it is the plaintiff's burden to demonstrate that his efforts were reasonable.
We have reviewed the certified record, the parties' briefs, the relevant law, and the trial court's opinion entered on June 27, 2016. The trial court largely relied on our decision in Englert to grant Israel's motion for summary judgment. As noted by the trial court, in Englert , the plaintiffs filed a writ of summons sixteen months after an automobile accident, the sheriff failed to deliver it because the defendant had moved, and plaintiffs filed a praecipe to reissue the writ of summons six days after the statute of limitations expired. The Englert Court affirmed the grant of summary judgment to the defendant because the plaintiffs failed to fulfill their good faith responsibility to see that service requirements were carried out.
Here, the trial court concluded:
Similar to Englert , in the case at bar [Appellants] made only one attempt at service before the statute of limitations period expired and served the writ on a vacant lot. Before this attempt at service, [Appellants] took no action to determine whether [] Israel still lived at this address. [Appellants] did not present [the trial court] with any information regarding searches for [] Israel's new address. Much akin to the failure of the Englert plaintiffs, [Appellants] here failed to do any research before making a defective attempt at service. [Appellants] did not amend the writ of summons to include [] Israel's new address at 2217 10th Street until November 10, 2014, over two months after the limitations period ran. Based upon those entries in the record, the [trial court found] that [Appellants] made insufficient attempts to serve the writ of summons within the limitations period and failed to follow up their single attempt at service with prompt research regarding a good address for [Israel]. In combination with [Appellants'] continual reissuances of the writ of summons and failure to comply with the [trial court's] multiple [a]lternative [s]ervice [o]rders, [the trial court was] constrained to find that [Appellants] displayed an intent to stall the judicial machinery and, as such, [Appellants'] filing of the writ of summons did not toll the statute of limitations.Trial Court Opinion, 6/27/2016, at 9 (emphasis in original).
The trial court opinion then distinguished and rejected the cases relied upon by Appellants, specifically, McCreesh v. City of Philadelphia , 888 A.2d 664 (Pa. 2005), Shackelford v. Chester City Hospital , 690 A.2d 732 (Pa. Super. 1997), and Ramsay v. Pierre , 822 A.2d 85 (Pa. Super. 2003). In McCreesh , the City of Philadelphia received actual notice of an action against it before the statute of limitations expired, even though service through certified mail was not the proper method. In Shackelford , five attempts at service (to the correct address) were made within two weeks of the issuance of the original writ; whereas, here Appellants waited until one year after the issuance of the original writ and sent service to a vacant lot. In Ramsay , the defendant was elusive, but plaintiff researched defendant's whereabouts, found two subsequent potential addresses, and moved for alternative service.
We conclude that there has been no error or abuse of discretion in this case and that the June 27, 2016 opinion meticulously, thoroughly, and accurately disposes of Appellants' issue on appeal. Therefore, we affirm on the basis of the trial court's opinion and adopt it as our own. Because we have adopted the trial court's opinion, we direct the parties to include the trial court's opinion in all future filings relating to our examination of the merits of this appeal, as expressed herein.
Order affirmed.
Judge Solano joins this memorandum.
Judge Strassburger files a Dissenting Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/17/2017
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