Jimenez, E. v. Burlington Stores, Inc., etc. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EMILY JIMENEZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BURLINGTON STORES, INC., T/A, : No. 1409 EDA 2021
D/B/A BURLINGTON COAT FACTORY :
Appeal from the Order Entered June 11, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 200301765
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 26, 2022
Emily Jimenez (“Jimenez”) appeals from the June 11, 2021 order
sustaining the preliminary objections of Burlington Stores, Inc., t/a, d/b/a
Burlington Coat Factory (“Burlington”) and dismissing Jimenez’s claims with
prejudice for improper service pursuant to Lamp v. Heyman, 366 A.2d 882,
889 (Pa. 1976) (“[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.”). After
careful review, we reverse and remand.
This case arose after an incident on April 4, 2018, when Jimenez was
patronizing Burlington’s store at 700 East Hunting Park Avenue in Philadelphia.
While browsing, Jimenez injured her eye on an item protruding from a shelf.
See Complaint, 4/7/21, at ¶ 7. On March 13, 2020, Jimenez commenced this
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civil action by filing a praecipe for a writ of summons. Her claims sounded in
negligence and, consequently, were subject to a two-year statute of
limitations. See 42 Pa.C.S. § 5524(2). Thus, her filing of the praecipe was
timely. Thereafter, she had thirty days in which to serve Burlington before
the writ of summons would need to be reinstated. See Pa.R.C.P. 401(a).
On March 18, 2020, our Supreme Court declared a statewide judicial
emergency in response to the COVID-19 pandemic. See In re: General
Statewide Judicial Emergency, 228 A.3d 1283, 1285 (Pa. 2020) (“March
18 Emergency Order”). In pertinent part, the High Court suspended “all time
calculations for purposes of time computation relevant to court cases or other
judicial business, as well as time deadlines[.]” Id. The courts of common
pleas were declared to be open only for “essential” functions. Id. at 6. In a
supplemental order, the Supreme Court provided specific guidance with
respect to the effect of its emergency declaration upon the rules governing
service of original process:
The non-exhaustive list of essential functions provided as
guidance to the Courts of Common Pleas shall include:
Commencement of a civil action, by praecipe for a writ of
summons, for purposes of tolling a statute of limitations.
However, all related procedural rules, including rules
regarding service of original process, are suspended as
set forth in this Court’s [o]rder of March 18, 2020.
In re: General Statewide Judicial Emergency, 228 A.3d 253, 253 (Pa.
2020) (emphasis added) (“March 24 Emergency Order). The emergency
suspensions from our Supreme Court lasted until April 30, 2020. See In re:
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General Statewide Judicial Emergency, 229 A.3d 229, 230 (Pa. 2020)
(“April 1 Emergency Order”) (stating that suspension of time calculations was
extended until April 30, 2020); In re: General Statewide Judicial
Emergency, 230 A.3d 1015, 1017 (Pa. 2020) (“April 28 Emergency Order”).
Contemporaneously, on April 13, 2020, counsel for Burlington entered
an appearance in this matter. See Entry of Appearance, 4/13/20, at 1.
Following the end of the emergency, Jimenez’s time to serve Burlington
with the original writ expired on May 25, 2020. See Pa.R.C.P. 401(a). Two
weeks later, on June 11, 2020, Jimenez reissued her writ of summons. On
June 25, 2020, a process server attempted to deliver a copy of the writ to the
Burlington location at 700 East Hunting Park Avenue, but the store was out of
business. Jimenez filed an affidavit of non-service in the trial court. See
Affidavit, 7/10/20, at 1 (“Service was NOT SERVED on 6/30/2020 at 2:12 PM,
for the reason described below: COMPANY OUT OF BUSINESS AT THE
LOCATION.” (emphases in original removed)).
On October 28, 2020, Jimenez reinstated the writ. In lieu of personal
service, Jimenez sent a certified letter to a corporate address associated with
Burlington located in New Jersey. See Affidavit of Service, 12/22/20, at 1. A
return receipt indicates the letter was delivered on November 5, 2020.
Burlington concedes that it received notice from Jimenez via certified mail.
On April 7, 2021, Appellant filed a complaint making out claims of negligence.
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On April 27, 2021, Burlington filed preliminary objections alleging that
Jimenez had improperly served the writ of summons. In this filing, Burlington
mistakenly asserted that Jimenez had never reinstated the writ after June 11,
2020, and, therefore, that service of the writ by certified mail on October 28,
2020, was untimely pursuant to Pa.R.C.P. 404 (providing “ninety days” in
which to serve original process “outside of the Commonwealth” following
reissuance of a writ of summons). See Preliminary Objections, 4/27/21, at
¶¶ 10-21. Thus, Burlington argued service was “improper since the writ had
lapsed and was not effective.” Id. at ¶ 19. Additionally, Burlington averred
Jimenez had “failed to make service . . . prior to the expiration of the statute
of limitations.” Id. at ¶ 20. Overall, Burlington claimed Jimenez’s cause of
action should be dismissed for failing to make a “good faith” effort at service
pursuant to Lamp, supra at 889. See Memorandum of Law in Support of
Preliminary Objections, 4/27/21, at 4.
Jimenez responded in opposition. She corrected Burlington by noting
that her writ of summons had been properly reinstated on October 28, 2020,
i.e., the same day that it was mailed to Burlington in New Jersey. See Answer
to Preliminary Objections, 5/17/21, at ¶¶ 5, 19. She also averred she was
not under an obligation to attempt service between March 18, 2020, and April
30, 2020, due to the Supreme Court’s emergency orders. Id. at ¶ 3. Jimenez
also detailed her efforts to serve Burlington at its closed storefront in June
2020. Id. at ¶ 13. Thereafter, “[m]ore research was needed in terms of
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finding a proper service address of [Burlington].” Id. Ultimately, her counsel
“found a proper service address” for Burlington in October 2020, shortly before
service was completed. Id. Finally, Jimenez noted that Burlington appeared
to have had actual notice of this lawsuit shortly after it was commenced due
to counsel’s entry of appearance in April 2020. Id. at ¶ 14. Thus, Jimenez
claimed she pursued service in good faith and, ultimately, served Burlington
in compliance with the Rules of Civil Procedure.
In a reply memorandum, Burlington abandoned its initial arguments and
adopted a new tack, asserting that Jimenez had waited too long in ascertaining
an alternative address for Burlington after her initial attempt service was
unsuccessful. See Reply Memorandum, 5/19/21, at 3 (“No explanation is
given for why [Jimenez] could not ascertain the address of Burlington’s
corporate headquarters any time sooner.”). Burlington also asserted without
evidentiary support that there were “other, open” Burlington stores in the
Philadelphia area that would have accepted service of original process from
Jimenez. Id. at 4. Thus, Burlington argued Jimenez had not pursued service
with good faith. Although it contained new averments of fact, the
memorandum was not verified as required by Pa.R.C.P. 206.3.
Less than one week later, the trial court sustained Burlington’s
preliminary objections. See Order, 5/25/21, at 1. Consequently, Jimenez
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had little opportunity to respond to this new theory of relief.1 Notice of the
docketing of this order dismissing Jimenez’s claims with prejudice was not
sent to the parties until June 12, 2021. Jimenez filed a timely notice of appeal
on July 6, 2021.2 Both the trial court and Jimenez have complied with the
respective mandates of Pa.R.A.P. 1925. In this appeal, Jimenez avers the trial
court legally erred and abused its discretion in sustaining Burlington’s
objections, arguing she complied with Lamp through her “good faith” efforts
at service. Jimenez’s brief at 9. We agree.
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1 We are troubled by the trial court’s failure to conduct any supplemental
factfinding before sustaining Burlington’s preliminary objections. The Rules
provide that an objection to improper service “cannot be determined from
facts of record.” See Note to Pa.R.C.P. 1028(c)(2). Additionally, Rule
1028(c)(2) also requires that “[i]f an issue of fact is raised, the court shall
consider evidence by depositions or otherwise.” Pa.R.C.P. 1028(c)(2)
(emphasis added). In applying these requirements, our Supreme Court has
observed that “[t]he trial court may not reach a determination based upon its
view of the controverted facts, but must resolve the dispute by receiving
evidence thereon through interrogatories, depositions, or an evidentiary
hearing.” American Housing Trust, III v. Jones, 696 A.2d 1181, 1185
(Pa. 1997). This Court has remanded where “clear issues of fact” are “not
resolved” on the existing record. See Szekely v. Abilene Flour Mills Co.,
237 A.2d 242, 244 (Pa.Super. 1967). However, we have overlooked
noncompliance where the underlying controversy does not require additional
fact-finding. See Wimble v. Parx Casino and Greenwood Gaming &
Entertainment, Inc., 40 A.3d 174, 179 (Pa.Super. 2012). Since this matter
may be resolved on the available evidence, we decline to remand.
2 Generally, “the time for appeal commences following the entry of a final
order.” Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1120
(Pa.Super. 2004) (emphasis in original). For such purposes, “an order is
‘entered’ when it has been docketed and notice of the docketing has been
given to the parties.” Id. Thus, Jimenez’s time in which to appeal did not
begin to “run” until notice of the underlying order was docketed on June 12,
2021. Thus, her notice of appeal was timely filed.
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In general, this Court will “reverse the trial court’s decision regarding
preliminary objections only where there has been an error of law or an abuse
of discretion.” Cooper v. Frankford Health Care System, Inc., 960 A.2d
134, 144 (Pa.Super. 2008). In the specific context of preliminary objections
for improper service of process, we conduct our review by applying “the same
standard as the trial court.” Bellan v. Penn Presbyterian Medical Center,
271 A.3d 506, 509 (Pa.Super. 2022). To wit, “where noncompliance with
Lamp is alleged, the trial court must determine in its sound discretion whether
a good-faith effort to effectuate notice was made[.]” Gussom v. Teagle, 247
A.3d 1046, 1048 (Pa. 2021). We also bear in mind that preliminary objections
seeking dismissal of the underlying action “may be properly sustained by the
trial court only if the case is free and clear of doubt.” American Housing
Trust, III v. Jones, 696 A.2d 1181, 1183-84 (Pa. 1997).
We begin our review by observing that the Lamp rule was adopted to
safeguard defendants against a potential exploit that exists in the
Pennsylvania Rules of Civil Procedure. Specifically, the Rules permit a plaintiff
to commence a civil action by filing, inter alia, a praecipe for a writ of
summons. See Pa.R.C.P. 1007(1). In general, the timely filing of a praecipe
to commence an action is sufficient to toll the running of the statute of
limitations. See Johnson v. Allgeier, 852 A.2d 1235, 1237 (Pa.Super.
2004). Thereafter, the Rules provide the plaintiff thirty days in which to serve
the defendant with original process, after which the writ expires. See
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Pa.R.C.P. 401(a). However, the Rules also provide the plaintiff may reissue
the writ “at any time and any number of times.” See Pa.R.C.P. 401(b)(1)-
(2). However, “[s]o long as the plaintiff file[d] her writ . . . before the
expiration of the statute of limitations applicable to her cause of action, the
original filing, as well as any subsequent reissuances or reinstatements,
toll[ed] the statute of limitations.” Gussom, supra at 1048. Thus, each such
tolling restarted the period of statutory limitation. See Devine v. Hutt, 863
A.2d 1160, 1167 (Pa.Super. 2004) (“When a plaintiff successfully tolls the
applicable statute of limitations . . ., the action is kept alive for a period equal
to the original statute of limitations.”).
In Lamp, our Supreme Court sought “to end abuses of process by
plaintiffs who tolled the statute of limitations by filing a writ of summons, had
the writ repeatedly reissued, and deliberately failed to notify the defendant of
the pending litigation.” McCreesh, supra at 665. Such procedure, “while
technically compliant with the [Rules], nonetheless defeated the purpose of
the statute of limitations, which is to protect defendants from stale claims.”
Id. Thus, Lamp provided 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.” Lamp, supra at 889. Our Supreme Court has subsequently refined
this rule to require plaintiffs to undertake “a good-faith effort to effectuate
notice of commencement of the action.” Farinacci v. Beaver County
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Industrial Dev. Authority, 511 A.2d 757, 759 (Pa. 1986). In this context,
a “good faith attempt at service” is best described as “a kind of condition
subsequent that must be fulfilled to complete the commencement of the action
begun by filing the praecipe.” Johnson, supra at 1237.
Our Supreme Court has aptly summarized the current state of the law
interpreting Lamp, and its practical application, as follows:
[Lamp] and its progeny require a plaintiff to make a good-faith
effort in diligently and timely serving process on a defendant.
When a defendant presents a factual dispute as to whether a
plaintiff fulfilled this duty, the plaintiff carries an evidentiary
burden to demonstrate that she met her good-faith mandate. If
a plaintiff presents credible evidence that she made this attempt
at service, then she fulfills her requirement to prove good faith.
If a plaintiff does not present such evidence, then she has failed
to satisfy her evidentiary burden, regardless of whether her
actions (or inaction) were intentional, unintentional, or otherwise.
However, pursuant to [McCreesh], a trial court should not punish
a plaintiff by dismissing her complaint where she is able to
establish that her improper but diligent attempts at service
resulted in the defendant receiving actual notice of the
commencement of the action, unless the plaintiff's failure to serve
process properly evinced an intent to stall the judicial machinery
or otherwise prejudiced the defendant.
Gussom, supra at 1047–48. Finally, “[w]hat constitutes a ‘good faith’ effort
. . . is a matter to be assessed on a case-by-case basis.” Englert v. Fazio
Mechanical Services, Inc., 932 A.2d 122, 124 (Pa.Super. 2007). With these
general legal principles in mind, we turn to the case at bar.
In rejecting Jimenez’s arguments concerning good faith, the trial court
explained its reasoning as follows:
Jimenez demonstrated an “intent to stall the judicial machinery”
by (1) never attempting to notify Burlington of the March 13, 2020
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Writ of Summons by service or otherwise before the statute of
limitations deadline; (2) in the three months after the statute of
limitations expired, making no effort to notify Burlington of the
Writ of Summons by service or otherwise; (3) failing to attempt
to notify Burlington of the Writ of Summons over a four-month
period despite Burlington having several business locations in
Philadelphia County, each of which would have been amenable to
notice or service of the Writ; and (4) failing to file a motion for
alternative service if Jimenez was having difficulty serving
Burlington.
Trial Court Opinion, 11/15/21, at 6 (cleaned up). We discern several errors
of law in the trial court’s analysis.
In its first justification and throughout its Rule 1925(a) opinion, the trial
court suggests that Lamp somehow requires a plaintiff to complete service of
process prior to the expiration of the original statutory period of limitation.
See id. at 4-6 (suggesting that failure to effectuate service “before the statute
of limitations deadline” was detrimental to Jimenez’s position). This Court has
rejected such an interpretation of Lamp. See Johnson, supra at 1237(“[T]he statutory provisions, rules and relevant case law do not require
personal service to be achieved prior to the expiration of the statute of
limitations. Rather they provide that such service of a timely filed writ must
be undertaken in good faith to assure that a defendant is aware of the
pending action.” (emphases added)). Indeed, the Lamp rule would be wholly
unnecessary if this were the case. See, e.g., McCreesh, supra at 674
(disapproving generally of “an objective bright line standard of compliance
that is wholly inconsistent with the concept of good faith”). Moreover, once
Jimenez timely commenced this action, the statutory period of limitation was
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essentially restarted anew with each reissuance of the writ. See Devine,
supra at 1167. Thus, the trial court’s first rationale affords no basis for
sustaining Burlington’s preliminary objection.
The trial court’s second point of reasoning claims Jimenez should have
attempted to serve Burlington irrespective of the Supreme Court’s COVID-19
orders. See Trial Court Opinion, 11/15/21, at 6 n.1 (emphasis omitted)
(“These orders did not suspend the Lamp rule’s requirement that a plaintiff
make a good-faith effort to notify a defendant, by service or otherwise, of the
lawsuit filed against it.”). We must disagree. The text of the Supreme Court’s
March 24, 2020 order belies the trial court’s interpretation. See March 24
Emergency Order at 253 (suspending “all” procedural rules pertaining to the
commencement of civil actions, including “rules regarding service of original
process”). Since Lamp indisputably concerns service of original process, we
conclude the rule was also effectively suspended through April 30, 2020. See
April 1 Emergency Order at 230; April 28 Emergency Order at 1017. Thus,
the trial court also erred by misinterpreting the effect of the Supreme Court’s
emergency orders on service of process. Jimenez was under no obligation to
attempt service pursuant to Lamp while these orders remained in force.
The trial court’s third point asserts Jimenez did not have a reasonable
basis for taking approximately four months to locate an alternative address
for Burlington and complete service by certified mail. The trial court found
that this time period constituted an unreasonable delay because Burlington
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allegedly had “several business locations in Philadelphia County, each of which
would have been amenable to notice or service of the Writ[.]” Trial Court
Opinion, 11/15/21, at 6. The trial court only reached this conclusion, however,
by relying upon unverified statements of fact.
Specifically, the trial court’s reasoning is based upon the following
sentence in Burlington’s reply memorandum: “No explanation is given for why
[Jimenez] could not have served Burlington at one of its other, open store
locations in Philadelphia (also easily found).” Reply Memorandum, 5/19/21,
at 4. However, Burlington offered no documentary evidence in support of this
bare averment. No such store locations were identified with particularity.
Furthermore, no proof was offered that these stores were open for business
during this phase of the COVID-19 pandemic. Moreover, Burlington offered
no statements that would permit a conclusion that an “agent” would have
been available to accept service. Cf. Pa.R.C.P. 402(a)(2) (“Original process
may be served at any office or usual place of business of the defendant to his
agent or to the person for the time being in charge thereof.”).
Although such documentary support is not required, averments of new
fact must be verified. See Pa.R.C.P. 206.3 (“A petition or an answer
containing an allegation of fact which does not appear of record shall be
verified.”). Although it contains novel factual averments, Burlington’s reply
memorandum was not verified. Thus, it was erroneous for the trial court to
consider the uncorroborated facts stated therein to sustain Burlington’s
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preliminary objections. See d’Happart v. First Commonwealth Bank, ___
A.3d ___, 2022 WL 3131274, at *9 (Pa.Super. Aug. 5, 2022) (noting that a
trial court erred to the extent it considered facts in an unverified submission
that were not already present in the record). Even assuming, arguendo, that
Burlington could establish the existence of these other locations, a plaintiff is
“not required to attempt service at [alternative] locations in order to fulfill her
good faith requirement.” Shackelford v. Chester County Hosp., 690 A.2d
732, 737 (Pa.Super. 1997). Thus, this third justification is of no moment.
Finally, the trial court’s fourth justification avers Jimenez should have
filed a request for alternative service pursuant to Pa.R.C.P. 430. Our review
of governing precedent reveals no requirement that a plaintiff must
prophylactically seek court dispensation for “special” accommodations
whenever a potential issue of service arises. Furthermore, since Jimenez was
ultimately able to serve Burlington in compliance with the ordinary Rules
governing service, the trial court’s position is simply untenable.
Contrary to the trial court’s discussion, Jimenez’s service upon
Burlington was fully compliant with the Rules of Civil Procedure. Her
commencement of this civil lawsuit was indisputably timely. See 42 Pa.C.S.
§ 5524(2); Pa.R.C.P. 1007(1). Thereafter, Jimenez was not immediately
required to complete service due to the Supreme Court’s COVID-19 orders.
Once the High Court’s emergency suspension was lifted, Jimenez reinstated
her writ of summons within two weeks of its expiration and attempted to serve
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Burlington at the location of the accident with the assistance of a process
server. See Pa.R.C.P. 400.1(a)(1) (indicating that service of “original
process” may be served by “a competent adult” for civil actions commenced
in Philadelphia). This effort was unsuccessful due to circumstances beyond
Jimenez’s control, i.e., the store was out of business. Jimenez filed an affidavit
reflecting these circumstances. See Pa.R.C.P. 405(a). From July 2020 to
October 2020, she conducted research and, ultimately, ascertained an
alternative address to effectuate service by certified mail. See Pa.R.C.P.
404(2) (permitting service outside of the Commonwealth by mail) (citing
Pa.R.C.P. 403). After the writ was reinstated one last time October 28, 2020,
Jimenez immediately mailed it within the relevant time limit. See Pa.R.C.P.
404 (providing service of a writ outside the Commonwealth must be completed
without ninety days of issuance). Finally, Jimenez filed a return receipt
reflecting completion of service. See Pa.R.C.P. 405(c).
These facts do not warrant dismissal under Lamp. As a general matter,
there is no per se period of time within which a writ of summons or a complaint
must be reissued for service purposes. See Pa.R.C.P. 401(b)(1)-(2)
(providing that a writ of summons may be reissued at “any time”); Education
Resources Institute, Inc. v. Cole, 827 A.2d 493, 497 (Pa.Super. 2003)
(finding “no authority” for the contention that an eight-month delay before
reinstatement constituted “bad faith” or otherwise rendered the filing
unservable). In the specific context of Lamp, this Court has found that a
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plaintiff may act in good faith in even where many months elapse between
initial, unsuccessful attempts at service and successful notification by
alternative means. See Frick v. Fuhai Li, 225 A.3d 573, 581-82 (Pa.Super.
2019) (finding plaintiff acted in good faith where approximately eight months
elapsed between her unsuccessful attempts at personal service at one address
and the accomplishment of service by alternative means). Thus, we find no
support for the proposition that Lamp is violated merely because it takes a
plaintiff a significant amount of time to complete service.
The touchstone of Lamp is a good-faith effort to complete service that
evinces a lack of intent to stall the judicial machinery or prejudice the
defendant. Here, Jimenez attempted to serve Burlington within Pennsylvania
at a recently closed business address. Thereafter, Jimenez averred without
contradiction that she took several months to locate an alternative address at
which to serve Burlington outside of the Commonwealth. Once this address
was ascertained, she completed service upon Burlington. We also bear in
mind that service of process in this case was overshadowed by the COVID-19
pandemic. In this context, “the occurrence of the pandemic and the struggles
and confusion it wrought . . . should be borne in mind” as they relate to good-
faith efforts under Lamp. Ferraro v. Patterson-Erie Corporation, 2022
WL 1717935, at *2 n.2 (Pa.Super. May 27, 2022) (non-precedential decision).
Hence, we conclude that these events, which fully complied with the
Pennsylvania Rules of Civil Procedure, reflect a diligent effort to effectuate
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service by Jimenez. Therefore, we reverse the order of the trial court
sustaining Burlington’s preliminary objections on the grounds of improper
service and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2022
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