Phillips, T. v. Triple G Farms, Inc. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TODD PHILLIPS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TRIPLE G. FARMS, INC., D/B/A : No. 514 MDA 2019
FOXCHASE GOLF CLUB; DOUGLAS S. :
GRAYBILL AND SUSAN A. GRAYBILL, :
EXECUTORS OF THE ESTATE OF :
IRVIN G. GRAYBILL AND DOUGLAS :
S. GRAYBILL, D/B/A TRIPLE G :
FARMS; AND GREGORY DISSINGER :
Appeal from the Order Entered March 11, 2019
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-17-04051
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 22, 2019
Appellant Todd Phillips appeals from the order sustaining the preliminary
objections filed by Appellees Triple G. Farms, Inc., doing business as Foxchase
Golf Club, Douglas S. Graybill and Susan A. Graybill, as executors of the estate
of Irwin G. Graybill and Douglas S. Graybill, doing business as Triple G. Farms,
Inc. (collectively, Foxchase), and Gregory Dissinger.1 Appellant contends that
the trial court erred in dismissing his suit because he made a good faith effort
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1 We collectively refer to Foxchase and Mr. Dissinger as Appellees.
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to serve the writ of summons and had no intention to stall the judicial process.
We affirm.
We state the facts according to Appellant’s complaint. On May 8, 2015,
Mr. Dissinger was playing golf at Foxchase Golf Club, owned and operated by
Foxchase. That same day, Appellant was also playing golf. Appellant alleged
that Mr. Dissinger “violated the rules of golf by failing to wait until [Appellee]
had cleared the green before hitting his golf ball from the tee.” R.R. at 16a.2
Appellant claims that as a result, Mr. Dissinger’s ball struck Appellant. Id.
Specifically, Appellant claimed Foxchase was negligent by, among other
things, “permitting golfers to hit golf balls while others were still on the
fairway.” Id. at 17a-20a. Appellant alleged Foxchase failed “to provide
marshals for the tournament” who would have enforced the rules of golf. Id.
Appellant also sued Mr. Dissinger for negligence because, by failing to “abide
by the rules of golf,” Mr. Dissinger hit a golf ball into Appellant. Id. at 21a-
22a. As a result, Appellant claimed he suffered a broken leg.
On May 21, 2015, Appellant’s counsel notified Foxchase and advised
Foxchase that they should “communicate with [their] insurance carrier
immediately so that we may discuss settlement negotiations.” Id. at 124a.
On June 2, 2015, Foxchase’s insurer sent a letter to Appellant’s counsel
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2 We cite to the reproduced record for the parties’ convenience.
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acknowledging counsel’s representation and requesting additional information
for its investigation. Id. at 120a.
On April 27, 2017, shortly before the statute of limitations expired,
Appellant filed a writ of summons and requested that the prothonotary forward
the writ to the sheriff. Id. at 2a. The statute of limitations expired on May 8,
2017. The record reflects no activity until December 4, 2017, when Appellant
filed a praecipe to reissue the writ of summons, which again asked the
prothonotary to forward the writ to the sheriff for service. Id. at 4a. The
sheriff filed its return of service on December 27, 2017. Id. at 6a.
Subsequently, Dissinger’s insurer sent two letters, dated January 9 and
February 1, 2018, discussing its ongoing investigation and determination that
it would not pay Appellant. Id. at 121a-22a.
Appellant ultimately filed his complaint on September 13, 2018. Id. at
12a-26a. On September 19, 2018, Mr. Dissinger filed preliminary objections
objecting to Appellant’s writ because it was untimely served. On September
27, 2018, Foxchase filed preliminary objections, as well, generally
incorporating Mr. Dissinger’s preliminary objections by reference. Appellant
filed a response in opposition and the trial court held oral argument on
February 28, 2019.
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On March 11, 2019, the trial court sustained Appellees’ preliminary
objections and dismissed Appellant’s complaint with prejudice.3 Appellant
timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues:
[1.] Whether the trial court erred in sustaining [Appellees’]
preliminary objections based on insufficient service of the writ of
summons.
[2.] Whether the trial court erred in sustaining [Appellees’]
preliminary objections where [Appellees] have failed to establish
prejudice from the insufficient service.
Appellant’s Brief at 3.
We summarize the arguments in support of both of Appellant’s issues
together. Initially, Appellant argues that he served Appellees in good faith.
Id. at 8. He maintains that because he “has not demonstrated an intent to
stall the judicial machinery,” and has complied with the rules of civil
procedure, the trial court should not have dismissed his complaint. Id.
Appellant contends that when he filed the writ of summons on April 27, 2017,
the writ instructed the prothonotary to forward the writ to the Lancaster
County Sheriff’s office for service on Appellees. Id. at 8-9. According to
Appellant, the writ was never forwarded to the sheriff and he never received
notice that service was incomplete. Id. at 9. Appellant adds that because he
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3 The opinion and order, dated March 8, 2019, was served on March 11, 2019.
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“maintained communications and contact with” Appellees, he provided “notice
of the action,” and thus, Appellees suffered no prejudice. Id. at 9, 11-12.
In Am. Interior Const. & Blinds Inc. v. Benjamin’s Desk, LLC, 206
A.3d 509 (Pa. Super. 2019), this Court stated that “[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.” Benjamin’s
Desk, 306 A.3d at 512.
By way of guidance, Pennsylvania Rule of Civil Procedure 405 addresses
non-service of original process:
(a) When service of original process has been made the sheriff or
other person making service shall make a return of service
forthwith. If service has not been made and the writ has not been
reissued or the complaint reinstated, a return of no service shall
be made upon the expiration of the period allowed for service.
* * *
(e) The return of service or of no service shall be filed with the
prothonotary.
* * *
(g) The sheriff upon filing a return of service or of no service shall
notify by ordinary mail the party requesting service to be made
that service has or has not been made upon a named party.
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Pa.R.C.P. 405(a), (e), (g).4 In other words, notice of service or non-service
must be promptly filed. Id.; see also Pa.R.C.P. 401 (stating that original
process must be served within thirty days after issuance of the writ).
In resolving the question of proper service, the Benjamin’s Desk Court
summarized the two cases of McCreesh v. City of Phila., 888 A.2d 664 (Pa.
2005), and Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), as follows:
In McCreesh . . . , the plaintiff filed a timely praecipe to issue a
writ of summons against Philadelphia. The plaintiff mailed the writ
of summons via certified mail to Philadelphia’s Law Department. .
. . In pertinent part, Philadelphia filed preliminary objections
asserting that delivery of the writ by certified mail in August 2002
did not comply with Pa.R.C.P. 400.1, which requires original
process in actions commenced in Philadelphia to be served by
either the sheriff or a competent adult. . . .
The Pennsylvania Supreme Court granted review to resolve
inconsistent holdings by the intermediate appellate courts, which
sometimes dismissed cases due to plaintiffs’ failure to comply
strictly with the Rules of Civil Procedure and on other occasions
reserving the drastic measure of dismissal for only those cases
where the defendant has been prejudiced by plaintiff's failure to
comply with the rules. After reviewing the conflicting caselaw, the
McCreesh Court held that the Commonwealth Court’s holding was
incompatible with the plain language of Rule 401, the spirit
of Lamp . . . , and the admonition of Rule 126 to construe
liberally the rules of procedure so long as the deviation does
not affect the substantial rights of the parties. In Lamp, we
sought to alleviate the hardships caused by plaintiffs who
exploited the rules of civil procedure to make an end run
around the statutes of limitations.
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4 As the Commonwealth Court observed, “[p]roper service is not presumed;
rather, the return of service itself must demonstrate that the service was
made in conformity with the Pennsylvania Rules of Civil Procedure.” City of
Phila. v. Berman, 863 A.2d 156, 160 (Pa. Cmwlth. 2004) (citation omitted).
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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 . . . 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.
Benjamin’s Desk, 206 A.3d at 513-14 (citations and quotation marks
omitted).
Nonetheless, the McCreesh Court imposed an evidentiary burden on
the plaintiff:
We subtly altered our holding in Lamp in Farinacci [v. Beaver
Co. Indus. Dev. Auth., 511 A.2d 757 (Pa. 1986)], requiring
plaintiffs to demonstrate a good-faith effort to effectuate notice of
commencement of the action. In announcing this refinement to
the Lamp rule, we acknowledged that the good faith requirement
is not apparent from a reading of the rule itself, but rather,
satisfied the stated purpose of our decision in Lamp which was to
avoid the situation where a plaintiff can retain exclusive control
over litigation by not making a good faith effort to notify the
defendant. We held that determining whether a plaintiff
acted in good faith lies within the sound discretion of the
trial court. Therefore, noting that plaintiffs are required to
comply with local practice to ensure, insofar as they are able,
prompt service of process, we affirmed the trial court’s decision to
dismiss the complaint where the plaintiff failed to deliver the writ
to the sheriff as required by local practice and consequently
delayed service upon the defendant for over a month.
McCreesh, 888 A.2d at 672 (citations omitted and some formatting altered).
In sum, the burden is on the plaintiff to make “a good faith effort to effectuate
service.” Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122, 124 (Pa.
Super. 2007); accord McCreesh, 888 A.2d at 672. Communication between
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a plaintiff and an insurance adjuster, however, does not serve “as a substitute
for actual service of process.” Ferrara v. Hoover, 636 A.2d 1151, 1153 (Pa.
Super. 1994) (holding, “We find no merit in the contention communication
between appellant and appellees’ insurance adjuster serves as a substitute for
actual service of process.”); accord Moses v. T.N.T. Red Star Exp., 725
A.2d 792, 798 (Pa. Super. 1999).
In determining whether the plaintiff acted in good faith, the Englert
Court 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.
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 [to effectuate service] were
reasonable.
Englert, 932 A.2d at 124-25 (citations omitted and some formatting altered).
For example, in Ferrara, the plaintiff filed a writ of summons but it was
never served on the defendants. Ferrara, 636 A.2d at 1151. The plaintiff
ultimately reissued the writ and served it six months later, which was after
the statute of limitations had expired. Id. The defendants succeeded in
dismissing the lawsuit on the basis of untimely service. Id. at 1152.
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The Ferrara plaintiff appealed, arguing that when he initially filed the
writ, he assumed “the prothonotary would, or did forward the writ to the
sheriff for service.” Id. The plaintiff asserted that because “either the
prothonotary or sheriff” was at fault, the trial court erred in dismissing the
lawsuit. Id. The plaintiff insisted he did not act in bad faith. Id. The Ferrara
Court disagreed, holding that although the plaintiff’s “counsel did not actively
attempt to thwart service of the writ, he also did not take any affirmative
action to see that the writ was served and to put the defendant[s] on notice
that an action had been filed against” them. Id.
Here, like the plaintiff in Ferrara, Appellant obtained the writ of
summons on April 27, 2017, and purportedly instructed the prothonotary to
forward the writ to the Lancaster County Sheriff’s office to serve the writ on
Appellees. See id. at 1151. As with the Ferrara plaintiff, Appellant assumed
the Lancaster County prothonotary would forward the writ to the sheriff for
service.5 See id. Identical to Ferrara, Appellant “did not take any affirmative
action to see that the writ was served” and put Appellees on notice of a
lawsuit. See id. at 1152. Appellant knew or should have known that original
process must be served within thirty days after issuance of the writ of
summons. See Pa.R.C.P. 401; see also Ferrara, 636 A.2d at 1152.
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5The trial court has observed that the Lancaster County prothonotary does
not forward writs to the sheriffs. Trial Ct. Op. at 7 n.3.
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Appellant should have, like the plaintiff in Ferrara, followed up upon not
receiving a copy of any notice of service or non-service. See Ferrara, 636
A.2d at 1152; see generally Pa.R.C.P. 405; Englert, 932 A.2d at 124-25.
Instead, similar to the Ferrara plaintiff, the record establishes Appellant did
not follow up until seven months later, when Appellant obtained a reissued
writ on December 4, 2017. See Ferrara, 636 A.2d at 1151. Appellant, like
the plaintiff in Ferrara, has not explained the lapse in time.
Moreover, to the extent that Appellant argues Appellees had actual
notice of the lawsuit, he is incorrect. Initially, Appellant’s counsel’s May 21,
2015, and June 2, 2015 correspondence reflects the typical pre-litigation
communications between an insurer and plaintiff’s counsel. See R.R. at 120a,
124a. The May 21, 2015 letter to Foxchase from Appellant’s counsel suggests
settlement and not a lawsuit. See id. at 124a. The June 2, 2015 letter merely
advises Appellant’s counsel that Foxchase’s insurer is investigating the claim
and requests counsel’s theory of liability. Id. Similar to Ferrara, such
correspondence between Appellant and Appellees’ insurance adjuster does not
serve “as a substitute for actual service of process.” See Ferrara, 636 A.2d
at 1153; see also Benjamin’s Desk, 206 A.3d at 513-14. Indeed, Appellant
had not even filed a writ at the time of the May 21 or June 2, 2015
correspondence.
Furthermore, the other two letters from Dissinger’s insurer, dated
January 9 and February 1, 2018, post-date Appellant’s December 11, 2017
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service of the writ. See R.R. at 121a-22a. Neither letter could establish
Appellees, let alone Dissinger, had actual notice of Appellant’s lawsuit prior to
the expiration of the statute of limitations. See Benjamin’s Desk, 206 A.3d
at 513-14. For these reasons, because the trial court did not abuse its
discretion, we affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2019
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