Dye, J. v. PMH Enterprises, LLC ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOYCE FOWLER DYE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PMH ENTERPRISE, LLC : No. 247 EDA 2019
Appeal from the Order Entered, January 9, 2019,
in the Court of Common Pleas of Philadelphia County,
Civil Division at No(s): June Term, 2018-1238.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 13, 2019
Joyce Fowler Dye appeals from the order of the trial court sustaining
preliminary objections and dismissing her amended complaint. The trial court
dismissed her amended complaint, because, after repeated attempts, Ms.
Dye’s counsel could not perfect service on Defendant, PMH Enterprise, LLC.
That draconian result violates our precedents. Thus, we modify the order’s
remedy to set aside the defective service of process; Ms. Dye’s amended
complaint is not dismissed.
The underlying facts are largely irrelevant, because this appeal involves
only a procedural matter. Briefly, Ms. Dye’s amended complaint alleges that
PMH used toxic substances to repair the roof of her office building. The
summer sun overheated the chemicals, and fumes wafted into the building’s
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* Former Justice specially assigned to the Superior Court.
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ventilation ducts. Ms. Dye asserts that she breathed in the toxins and suffered
injuries to her throat and respiratory system.
Ms. Dye commenced this action on June 12, 2018 by filing a complaint
against PMH. She listed the company’s address as 6040 Belfield Ave.,
Philadelphia, PA 19144. Ms. Dye’s attorney obtained that data from the
company’s website, an online phonebook, and a Freedom of Information Act
Response from the United States Postal Service. See Affidavit of Plaintiff’s
Counsel, 10/1/18, at 1. PMH’s president agreed that was his company’s
address.1 See Affidavit of Donald Pinkney, 11/10/18, at 1. The president
averred that the 6040 Belfield Ave. “office is open every business day, except
during those times that its members are at jobsites.” Id.
Ms. Dye provided that address to a process server. The server tried to
perfect service on PMH at:
1. 1:44 pm on Wednesday, August 1, 2018;
2. 10:33 am on Thursday, August 2, 2018;
3. 2:08 pm on Friday, August 3, 2018; and
4. 9:10 am on Monday, August 6, 2018.
See Affidavit of James Davis, 8/8/18, at 1. Despite those four attempts during
business hours, the process server reported that PMH kept its office shuttered.
“The business was closed, and the metal gates were down and padlocked
during all attempts. There were no neighbors to confirm with, and the
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1 According to PMH, it still is. See https://www.pmhenterprisellc.com/home
(last visited 8/8/19).
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property is surrounded by vacant buildings, and storage and parking lots.”
Id.
A week after service failed, PMH filed preliminary objections to Ms. Dye’s
complaint on several grounds, including that service of process was defective.
Despite not being served, PMH was able to attach a “true and correct copy of
[Ms. Dye’s] complaint . . . as Exhibit A” to its preliminary objections, because
plaintiff’s counsel previously e-mailed it to PMH’s attorney. PMH’s Preliminary
Objections, 8/15/18, at 1. PMH also acknowledged the process server’s four
unsuccessful service attempts. Id. at 2. PMH argued that improper service
deprived the trial court of jurisdiction and sought the dismissal of Ms. Dye’s
complaint.
Ms. Dye rendered those preliminary objections moot a week later when
she filed an amended complaint.2 After a month-and-a-half, Ms. Dye moved
the trial court for permission to make alternative service on PMH. The court
granted her motion in an October 4, 2018 Order, which set the parameters
for perfecting alternative service. The trial court permitted Ms. Dye “to serve
the Civil Complaint by regular mail to the last known address and by posting
same on the premises at 6040 Belfield Ave., Philadelphia, PA 19144.” Trial
Court Order, 10/4/18, at 1.
The following week, “nearly two months after [Ms. Dye] filed her
Amended Complaint, [she] mailed a copy of the Amended Complaint to
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2 See Pennsylvania Rule of Civil Procedure 1028(c)(1).
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[PMH’s] last known address by regular mail without first reinstating the
Amended Complaint.” Trial Court Opinion, 2/11/19, at 2. Next, she reinstated
her amended complaint with the Office of Judicial Records of Philadelphia
County. Two days later, the process server posted the amended complaint at
the 6040 Belfield Ave. office of PMH. However, Ms. Dye “did not mail a copy
of the reinstated Amended Complaint to [PMH’s] last known address by
regular mail, as required by the October 4, 2018 order granting alternative
service.” Id. (emphasis in original).
PMH filed a new set of preliminary objections on November 15, 2018
and attached its president’s affidavit. He averred PMH “has not received a
copy of [Ms.] Dye’s Amended Complaint in the mail.” Affidavit of Donald
Pinkney, 11/10/18, at 1. The trial court sustained the preliminary objections
on December 10, 2018 and granted PMH the relief it sought – namely,
dismissal of Ms. Dye’s amended complaint.
Ms. Dye sought reconsideration, which the trial court denied. This
timely appeal followed. Although the trial court did not order Ms. Dye to
comply with Pennsylvania Rule of Appellate Procedure 1925(b), it issued a
Rule 1925(a) Opinion detailing its factual findings and legal conclusions.
Ms. Dye raises one issue on appeal: “Did the [trial court] commit an
error of law when [it] dismissed [her] Amended Complaint upon [PMH’s]
Preliminary Objections for an alleged defect in service?” Dye’s Brief at 5.
While accepting the trial court’s finding that all of her many service
attempts were invalid, Ms. Dye argues that dismissing her entire case was an
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erroneous remedy. She relies on several opinions of this Court to support her
position.
PMH responds with an argument it did not make below. It asserts that
Ms. Dye violated the rule in Lamp v. Heyman, 366 A.2d 882, 889 (Pa. 1976)
(announcing, prospectively, that “a writ of summons [or complaint] 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.”). Specifically, PMH contends that Ms. Dye’s failed
attempts at service were not a good-faith effort to satisfy the Lamp Rule.
PMH’s brief implies that the trial court found Ms. Dye in violation of
Lamp, because it determined she did not make a good faith attempt to perfect
service of process. PMH argues that this Court must defer to that ruling,
because it is fact-sensitive. It claims that:
Whether a plaintiff made a good faith effort to effectuate
service within the period of time required by Pennsylvania
law is a fact-based inquiry that courts make on a case-by-
case basis . . . As such, [Ms. Dye’s] request that this Court
rule that the trial court can never exercise its discretion to
dismiss a complaint for improper service plainly contradicts”
various appellate-court precedents.
PMH’s Brief at 7.
PMH has correctly stated our standard of review for a determination of
a bona fide effort at service or a lack thereof. This “is a factual matter within
[the trial court’s] sound discretion.” Englert v. Fazio Mechanical Services,
Inc., 932 A.2d 122, (Pa. Super. 2007). However, PMH did not assert a Lamp
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Rule violation in its preliminary objections. Moreover, its implication that the
trial court found Ms. Dye in violation of the Lamp Rule is troublesome,
because the trial court made no such finding.
Such a finding would have required the trial court to have concluded
that Ms. Dye (1) intentionally delayed the service of process to stall the trial
court’s proceedings or (2) that lack of perfected service prejudiced PMH.3
Indeed, plaintiff intent and defendant prejudice are the twin touchstones of
the Lamp Rule:
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)] 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.
McCreesh v. City of Philadelphia, 888 A.2d 664, 674 (Pa. 2005).
PMH’s preliminary objections claimed no prejudice, no lack of notice,
and no intent by Ms. Dye to stall the judicial machinery. In fact, when this
Court asked at oral argument what prejudice PMH suffered, its counsel stated
that his client was not making a prejudice argument.
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3 PMH had actual notice of this lawsuit soon after Ms. Dye filed it, because her
lawyer e-mailed its attorney a copy of the original complaint. “Actual notice
has been defined as notice expressly and actually given, and brought home to
the party directly.” Commonwealth v. Crockford, 660 A.2d 1326, 1330
(Pa. Super. 1995). If PMH had not received actual notice, it likely would not
have been able to file its original preliminary objections as early as it did.
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The same was true in the trial court. Instead of arguing that Ms. Dye
had prejudiced PMH or intentionally violated her duty to prosecute her case in
good faith, PMH contended that that court lacked jurisdiction, as a matter of
law, due to the technicalities of service. See PMH’s Memorandum of Law in
Support of Preliminary Objections, 11/15/18, at 3 – 4. The company’s
argument was one paragraph:
[Ms. Dye] never mailed [a reinstated copy of] the
Amended Complaint to PMH and thereby failed to comply
with [the trial court’s] order setting forth the method of
alternative service that must be followed. See Exs. D, F,
and G [of 11/15/18 Preliminary Objections]. In addition to
failing to comply with [the trial court’s] Order on alternative
service, [Ms. Dye] has otherwise failed to comply with the
service requirements of the applicable Rules of Civil
Procedure related to service of original process and her
failure to do so in this instance is fatal to her claims against
PMH. Since Plaintiff has not properly served process on
PMH, PMH is not within [the trial court’s] jurisdiction and the
claims asserted against it must be dismissed.
Id. at 4 – 5. Noticeably absent is any reference to Lamp, its progeny, and
Ms. Dye’s supposed lack of a good-faith in attempting to perfect service.
The trial court accepted PMH’s legal argument in full and adopted the
company’s proposed remedy. It “sustained [PMH’s] Preliminary Objections
because [Ms. Dye] improperly served her Amended Complaint upon [PMH]
and, as a result, the trial court did not have personal jurisdiction over [PMH].”
Trial Court Opinion, 2/11/19, at 4. The court opined:
following the reinstatement of the Amended Complaint on
October 24, 2018, [Ms. Dye] posted a copy of the reinstated
Amended Complaint at [PMH’s] Office on October 26, 2018.
But, [she] never mailed a copy of the reinstated Amended
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Complaint to [PMH’s] last known address by regular mail as
required by the October 5, 2018 order granting alternative
service. [Because Ms. Dye] failed to comply with the [trial
court’s] October 4, 2018 Alternative Service Order – that is,
by both posting it and sending it by regular mail – service
was invalid, and the trial court lacked personal jurisdiction
over the Defendant. As a result, the trial court . . . sustained
[PMH’s] Preliminary Objections and dismissed [Ms. Dye’s]
Amended Complaint.
Id. at 4 – 5 (emphasis in original)
The trial court did not apply the Lamp Rule. Hence, PMH’s reliance on
Lamp and its progeny’s abuse-of-discretion standard of review is misplaced.
Additionally, the trial court never made any findings of fact. Relying
upon the pleadings and paper record, the trial court made legal interpretations
of the Rules of Civil Procedure. Hence, we face a question of law. As with all
legal questions, “our scope of review is plenary, and our standard of review is
de novo.” Kessock v. Conestoga Title Ins. Co., 194 A.3d 1046, 1056 (Pa.
Super. 2018).
In Pennsylvania, the remedy for failure to perfect service of process is
settled. We have long held that dismissal of a plaintiff’s complaint to punish
her for improper service is legal error:
“The suit is not dead merely because the complaint
has not been served within thirty days of its filing.”
Lauterbach v. Lauterbach, 202 Pa. Super. 260, 195 A.2d
159 (Pa. Super. 1963). Under Pa.R.C.P. 401(b), the
complaint may be reinstated without requiring that the
appellants commence a new lawsuit. Sherry v. Trexler-
Haines Gas, Inc., --- Pa. Super. ---, 541 A.2d 341 (Pa.
Super. 1988). The appellants properly followed all the
necessary procedures in keeping their cause of action alive.
The appellants filed the praecipe for writ of summons and
request for service on October 15, 1985. In so doing, they
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tolled the applicable statute of limitations, which would not
have run until two years from that date. [Wible v.
Apanowicz, 452 A.2d 545 (Pa. Super. 1982)]. The failure
to complete service does not affect the appellants’ rights to
reinstate the complaint within the statutory period. [4] Rule
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4 “Statutory period” does not refer the original statute of limitations. Rather,
the phrase as used here means the additional period that a plaintiff has to
prefect service following the commencement of a lawsuit. The Pennsylvania
Rules of Civil Procedure provide that a service-of-process period is the same
length as the original statute of limitations. That period may be extended
indefinitely, if service cannot be perfected upon an allusive defendant.
As the Lamp Court explained:
filing a praecipe to commence an action is sufficient to toll
the running of the statute of limitations and that, although
Pa.R.C.P. [401(a)] provides that a writ shall be served
within thirty days after issuance or filing, it may, pursuant
to Pa.R.C.P. [401(b)(1)-(2)], be reissued at any time after
the original issuance during a period equivalent to that
permitted by the applicable statute of limitations for
the commencement of the action; further, each valid
reissuance gives rise to a new, equivalent period during
which the writ may again be reissued.
Lamp v. Heyman, 366 A.2d 882, 885-886 (Pa. 1976) (emphasis added).
However, some plaintiff’s (like Ms. Lamp) were exploiting the Rules of Civil
Procedure.
“We note that it has become a relatively common practice . . . for
attorneys to file a praecipe with the prothonotary to toll the statute of
limitations but then, whether because settlement negotiations are in progress
or because more time is needed to prepare the case, to delay or prevent
service upon the defendant.” Id. at 886. A crafty lawyer could file a writ and
direct the prothonotary not to forward it to the sheriff for service. When the
writ expired, the lawyer would simply praecipe for its reinstatement and again
ask that the prothonotary to withhold it from the sheriff.
No longer willing to permit such gamesmanship, the Supreme Court
announced the Lamp Rule – “a writ of summons shall remain effective to
commence an action only if the plaintiff then refrains from a course of conduct
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401 clearly provides that a complaint which is not served
within thirty (30) days of issuance may be reinstated.
Although service made after the expiration of the thirty (30)
days may be considered void, failure to serve the complaint
within that period does not render the complaint a nullity.
[Cannon v. Avco Corporation, 323 A.2d 290 (Pa. Super.
1974). See Bowman v. Mattei, 455 A.2d 714 (Pa. Super.
1983). Based upon the foregoing, we conclude that the trial
court erred in granting appellee’s motion to strike the
complaint on the basis that appellants failed to effectuate
service.
Fox v. Thompson, 546 A.2d 1146, 1148–49 (Pa. Super. 1988) (footnote
omitted).
Here, Ms. Dye’s amended complaint alleges one count of negligence by
PMH resulting in bodily injury. The statute of limitations for that cause of
action is two years. See 42 Pa.C.S.A. § 5524(2). Ms. Dye commenced suit
by filing a complaint against PMH on June 12, 2018, and she had two years
from that date (June 12, 2020) to prefect service on the defendant, provided
she made good faith efforts under Lamp to do so. Thus, she is clearly still
within the time period to perfect her service upon PMH.
Because PMH did not seek and the trial court did not make a factual
finding that Ms. Dye’s attempted, defective service was not in good faith, a
“more appropriate remedy would have been to set aside the service.”
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which serves to stall in its tracks the legal machinery he has just set in
motion.” Id. at 889. In other words, a plaintiff must make a good-faith effort
to server process within the relevant time period.
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Frycklund v. Way, 599 A.2d 1333, 1333 (Pa. Super. 1991). Accordingly, we
now modify5 the appealed from order as follows:
AND NOW, this 10th Day of December, 2018, upon
consideration of Defendant PMH Enterprise, LLC’s
Preliminary Objections, it is hereby ORDERED that the
Defendant PMH Enterprise, LLC’s first preliminary objection
is SUSTAINED. It is further ORDERED that Plaintiff Joyce
Fowler Dye’s service of process is set aside as improper.
Plaintiff Dye may file a praecipe in the Office of Judicial
Records of Philadelphia County to reinstate her Amended
Complaint and thereafter perfect service upon PMH
Enterprise, LLC, under the October 4, 2018 Order of the
Court of Common Pleas of Philadelphia County.
Order affirmed as modified. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/19
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5 “An appellate court may . . . modify . . . any order brought before it on
appeal . . . .” 42 Pa.C.S.A. § 706.
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