M.R. Holbrook & D.L. Holbrook, his wife v. PA DOT

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mason R. Holbrook and Diane L. Holbrook, his wife, Appellants Vv. > No. 372 C.D. 2021 : Submitted: November 5, 2021 Pennsylvania Department of Transportation BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE WOJCIK FILED: April 28, 2022 Mason R. Holbrook (Husband) and Diane L. Holbrook (Wife) (collectively, Plaintiffs) appeal the order of the Beaver County Court of Common Pleas (trial court) sustaining the Preliminary Objections (POs) of the Pennsylvania Department of Transportation (PennDOT/Defendant) in the nature of a demurrer and dismissing Plaintiffs’ Complaint. We affirm. On September 29, 2018, at approximately 10:30 p.m., Husband was walking along Pennsylvania Route 68 in Bridgewater Township, Beaver County, in a northerly direction. Complaint [5, Original Record (OR) at 7.' Husband fell into an exposed grate that purportedly had been allowed to exist in a dangerous condition, ' Because the Original Record was filed electronically and was not paginated, the page numbers referenced in this memorandum opinion reflect electronic pagination. causing Husband serious injury. Complaint (6; OR at 7. At all relevant times, PennDOT was primarily and/or secondarily responsible to maintain the grate properly, adequately, and safely. Complaint 9/7, 8; OR at 7. The grate’s dangerous condition existed for a sufficient period so that PennDOT had actual and/or constructive notice of its dangerous condition. Complaint (9; OR at 7. Based on PennDOT’s alleged negligence, Husband suffered a left foot metatarsal fracture; a fractured distal shaft of the second metatarsal; and left foot sprain/strain. Complaint (12; OR at 8-9. As a result of these injuries, Husband suffered pain, mental anguish, and embarrassment; is unable to enjoy the ordinary pleasures of life; has had to undergo medical treatment; has incurred bills for medical treatment; and has been unable to perform his normal daily activities. Complaint q13; OR at 9. Additionally, Wife has been deprived of Husband’s services and incurred medical bills for Husband’s necessary medical treatment. Complaint 414; OR at 9-10. Accordingly, on September 3, 2020, Plaintiffs filed the Complaint against PennDOT seeking damages and judgment in their favor. Complaint at 1-9; OR at 4-12. On September 22, 2020, Deputy Joshua Long of the Sheriff’s Office of Dauphin County served the Complaint on Tiffany Ramsey for PennDOT at the Keystone Building, 400 North Street, Harrisburg. /d. at 15. On October 6, 2020, Tony Guy, Sheriff of Beaver County, deputized the Sheriff of Dauphin County to serve the Complaint, and obtained the Shernff’s Return of Service on PennDOT from Dauphin County, and filed the Return of Service in the trial court. /d. at 14. > The negligence and loss of consortium causes of action have a two-year statute of limitations. See, e.g., Sullivan v. Haywood (Pa. Super., No. 2043 MDA 2013, filed March 16, 2015), slip op. at 7 (“Pursuant to [Section 5524 of the Judicial Code,] 42 Pa. C.S. §5524, the statute of limitations applicable to negligence and loss of consortium claims is two years from the date of the injury. Once the statute of limitations has run, the injured party is barred from suing.”). [2] On October 14, 2020, Sandra Kozlowski, Deputy Attorney General (Defendant’s Counsel), sent Plaintiffs’ Counsel an e-mail stating, in relevant part: I represent PennDOT in the above matter which was recently received by this office. At present, I have not received any documentation from PennDOT relative to your clients’ claims. I have also not received any of the service documentation. While I believe that PennDOT was served as this case was referred to our office, I don’t have any indication that the Office of Attorney General [(OAG)] was served in this matter. Please understand that the Commonwealth is not waiving the requirements of 37 Pa. Code $111.1! for original 3 Section 111.1(a), (b), and (d)(2) states, in pertinent part: (a) Service of process on Commonwealth agencies in actions brought under 42 Pa.C.S. §§8501-8564 (relating to matters affecting government units) shall be made at the principal office of the defendant agency as set forth in subsection (b) .... Service of process shall also be made at the principal [OAG] as set forth in subsection (b), and at the [regional OAG| as set forth in subsection (d). (b) The addresses of the principal offices designated to accept service of an agency are as follows: 7k OK ok [OAG] Torts Litigation Unit 15th Floor, Strawberry Square, Harrisburg, Pennsylvania 17120 7k OK ok [PennDOT] Office of Chief Counsel 9th Floor, Commonwealth Keystone Building 400 North Street, Harrisburg, Pennsylvania 17120-0041 7k OK ok (Footnote continued on next page...) service of process. I would sign an Acceptance of Service on behalf of the OAG with the understanding that PennDOT would have 20 days from the date of the Acceptance to file a responsive pleading. Please let me know how you would like to proceed. OR at 50. The following day, Plaintiffs’ Counsel e-mailed Defendant’s Counsel proof of service of the Complaint on PennDOT at PennDOT’s principal office. Jd. at 55. On December 10, 2020, Plaintiffs filed and served on Defendant’s Counsel a Notice of Service of Interrogatories, Request for Production of Documents, and Request for Admissions Directed to Defendant. OR at 20-23. On December 21, 2020, Defendant’s Counsel sent Plaintiffs’ Counsel an e-mail stating, in relevant part: I received the message from the [trial court jJudge. I would be happy to call her back this afternoon or (d) The [OAG] designated for service of process only in actions where venue is located in the following counties is as follows: 7k OK ok (2)... Beaver ...—Torts Litigation Unit, 4th Floor, Manor Building, 564 Forbes Avenue, Pittsburgh, Pennsylvania 15219. 37 Pa. Code §111.1 (a), (b), (d)(2) (emphasis added). See also Pa. Const. art. I, §11 (“Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.”); Section 8523(b) of the Judicial Code, 42 Pa. C.S. §8523(b) (“Service of process in the case of an action against the Commonwealth shall be made at the principal or local office of the Commonwealth agency that is being sued and at the [OAG].”); Pa.R.Civ.P. 400(a) (Absent limited exceptions, “original process shall be served within the Commonwealth only by the sheriff.”); Pa.R.Civ.P. 422(a) (“Service of process upon the Commonwealth... ora department. . . shall be made at the office of the defendant and the [OAG] by handing a copy to the person in charge thereof.”); Reaves v. Knauer, 979 A.2d 404, 410 (Pa. Cmwlth. 2009) (“[The] failure to serve a copy of the complaint on the Attorney General cannot be excused. This omission renders [the p]laintiff’s service defective and deprived the trial court of jurisdiction over [the defendants].”) (citation omitted). [4] tomorrow when you are available. First, my appearance is not entered because proper service has not been made pursuant to statute. In my e-mail of October 14, 2020, I identified the service defect and gave you the [regulation], 37 Pa. Code §111.1 . You responded by sending me service documents only demonstrating that PennDOT had been served. That is not sufficient service under the [regulation]. The [OAG] MUST be served in addition to the state agency. In my October 14, 2020 e-mail I made the offer of signing an Acceptance of Service on behalf of the OAG, thereby saving you and your client the expense of service by Sheriff. If you are not willing to correct the defect, then I will file POs. The Law is very clear that the [trial c]ourt does not have jurisdiction over the matter until the service requirements are met under the statute. OR at 51 (emphasis in original). That same day, an employee in Plaintiffs’ Counsel’s office sent an e- mail to Deputy Attorney General Kozlowski stating, in relevant part: I am writing on behalf of [Plaintiffs’ Counsel] relative to the above case. We apologize for missing the e[-]mail regarding proper service of the OAG. Ihave attached here an Acceptance of Service if you are still willing to sign on behalf of the OAG pursuant to your original e[-]mail. OR at 52. Ultimately, on January 5, 2021, PennDOT filed POs alleging, inter alia, a lack of in personam jurisdiction based on Plaintiffs’ failure to properly serve the OAG. See OR at 28-29. On March 15, 2021, following argument, the trial court issued an order sustaining the POs and dismissing Plaintiffs’ Complaint. See id. at 100 . Plaintiffs then filed the instant timely appeal of the trial court’s order, asserting that the trial court erred in sustaining the POs and dismissing their Complaint because: (1) Defendant’s Counsel had agreed in writing to accept late service of process, but reneged on the agreement and violated her duty of fairness by filing the [5] POs; and (2) they acted in good faith by twice attempting service of process upon the OAG, the OAG had sufficient notice that the Complaint was filed against PennDOT, and the OAG and PennDOT were not prejudiced because substantive rights were not affected by the defective service of process. However, upon review,* we have determined that this matter was ably disposed of in the comprehensive and well-reasoned Memorandum Opinion of the Honorable Laura J. Tocci. Accordingly, we affirm the trial court’s order on the basis of the opinion in Holbrook v. Pennsylvania Department of Transportation (C.P. Beaver, Case No. 10906-2020, filed March 15, 2021). MICHAEL H. WOSJCIK, Judge + “Where a trial court dismisses a complaint based on preliminary objections, this Court’s review is limited to determining whether the trial court committed an error of law or an abuse of discretion.” Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014). Additionally, “‘[w]hether a court may disregard a litigant’s defective service of process [...] is vested within the sound discretion of that court.’ Konya v. District Attorney of Northampton County, [ 669 A.2d 890, 892 (Pa. 1995)]. We will not overturn a trial court’s rigid application of procedural rules unless the trial court abused its discretion. Jd.” Miller v. Klink, 871 A.2d 331, 337 (Pa. Cmwlth. 2005). See also Luzerne County Children & Youth Services v. Department of Human Services, 203 A.3d 396, 398 (Pa. Cmwlth. 2019) (“An abuse of discretion occurs if, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable or is the result of partiality, prejudice, bias, or ill will.”) (citation omitted). [6] IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mason R. Holbrook and Diane L. Holbrook, his wife, Appellants v. : No. 372 CD. 2021 Pennsylvania Department of Transportation ORDER AND NOW, this 28" day of April, 2022, the Order of the Beaver County Court of Common Pleas dated March 15, 2021, is AFFIRMED. MICHAEL H. WOSJCIK, Judge IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY PENNSYLVANIA MASON R. HOLBROOK and DIANE L. HOLBROOK, his wife, CIVIL DIVISION — LAW Plaintiffs, VS. . No Case No.: 10906-2029, my PENNSYLVANIA DEPARTMENT Oye =. OF TRANSPORTATION, ROD 5 Defendant. Q 5 moa 298 2 MEMORANDUM OPINION RBS 3 oS: Oo Mason R. Holbrook and his wife, |Diane L. Holbrook (hereinafter “Plaintiffs”), initiated this civil action against the P ennsylvania Department of Transportation (hereinafter “PennDot”) alleging that on September 29, 2018, Plaintiff Mason was injured due to Defendant’s negligent maintenance of a grate located on Route 66, Bridgewater, PA. PennDot’s negligence is allegedly the of the grate caused him to fall and suffer j cause of Plaintiffs’ injuries after the condition njuries, along with those damages claimed by his wife arising from the same. Plaintiffs’ Complaint includes two causes of action: Count I — Plaintiff Mason alleges Negligence against Defendant; and Count II — Plaintiff Diane alleges Loss of Consortium against Defendant. Plaintiffs demand judgment against Defendant seeking damages in an amount beyond the local arbitration limits. Plaintiffs commenced this action by filing a Complaint on September 3, 2020, within the two-year statute of limitations, by Deputy Joshua M. Long on Septembe Office of the Attorney General (hereina Service was properly effectuated on PennDot r 22, 2020. However, regarding service to the fter “OAG”), Sandra A. Kozlowski, Esq. sent Plaintiff's Counsel an e-mail on October 14, 2020 notifying them of a service defect under Ganssi yo aat4 37 Pa. Code § 111.1 . The e-mail also included a provisional offer to accept service on behalf of the Pennsylvania OAG.* In whole, the e-mail stated: I represent PennDOT in the above matter which was recently received by this office. At| present, I have not received any documentation from PennDOT relative to your client’s claims. I have also not received any of|the service documentation. While I believe that PennDOT was served as this case was referred to our office, I don’t have any indication that the Office of the Attorney General was served in this matter. Please understand that the (Commonwealth is not waiving the requirements of 37 PA. Code § 111.1 for original service of process. I would sign an Acceptance of Service on behalf of the OAG with the understanding that PennDOT would have 20 days from the date of the Acceptance to file a responsive pleading. Please let me know you would like to proceed.2 On October 15, 2020, Plaintiff's Counsel sent a responsive e-mail which stated, in its entirety, “[S]ervice and our letter sent gn 11-15-18. Thanks.”3 The e-mail also included two attachments: the Sheriff's Return of Service to PennDot and a letter sent to PennDot, dated November 15, 2018. 4 The letter sent to PennDot was referred to by Plaintiffs Counsel as formal notice under 42 Pa. C.S.A § 5522 of their intent to commence a possible action against PennDot.5 No letter was submitted to the OAG under the requirements of 42 Pa. C.S.A § 5522. Defendant filed Preliminary Objections and a Brief in Support of the same on January 5, 2021 in accordance with 231 Pa. Code § 1028 (a)(1). This Court heard ! Preliminary Objections of Defendant, Exhibit A. 2 Preliminary Objections of Defendant, Exhibit A. 3 Preliminary Objections of Defendant, Exhibit B. 4 Preliminary Objections of Defendant, Exhibit B. 5 Preliminary Objections of Defendant, Exhibit B. arguments in support of, and in oppositio February 10, 2021 and the Court’s decision Is The sole issue before the Court is wh has been established by proper service of p1 properly serve Defendant, eliminating + Defendant. STANDARI In Bower v. Bower, 531 Pa. 54, 57 , 6 Pennsylvania Supreme Court addressed objections in the nature of a demurrer as f¢ Preliminary objections, the dismissal of a cause of actiol that are clear and free from d 225, 213 A.2d 362, 364 (1965 is whether it is clear and fr pleaded that the pleader w sufficient to establish his rig Pa. 560, 563, 353 A.2d 833 , § mn to, Defendant’s Preliminary Objections on is explained in the following analysis. SUE ether in personam jurisdiction over Defendant rocess by Plaintiff or whether Plaintiff failed to this Court’s in personam jurisdiction over D OF REVIEW 11 A.2d 181 , 182 (1992) (citations omitted), the 1 the standard for addressing preliminary allows: > end result of which would be nh, Should be sustained only in cases pbubt. Baker v. Brennan, 419 Pa. 222 , ). The test on preliminary objections ee from doubt from all of the facts ill be unable to prove facts legally tht to relief. Firing v. Kephart, 466 835 (1976). In addressing this type of preliminary objection, the trial court must accept, as true, all of the well-pleaded facts, along \ therefrom. Jd. In order for a trial court t appear with certainty that the law will not of Lancaster, 696 A.2d 884, 886 (Pa. Cmv the demurrer should be sustained, ther [399] overruling it.” Bruno v. Erie Insurance Ci with any reasonable inferences that may arise b sustain such preliminary objections, it must allow recovery. East Lampeter Twp. v. County vith. 1987). “If doubt exists concerning whether 1 ‘this doubt should be resolved in favor of )., 106 A.3d 48, 56 (Pa. 2014), quoting Bilt-Rite [3] v. The Architectural Studio, 866 A.2d 270, 274 (Pa. 2005). These principles govern analysis of defendants’ preliminary objections in the form of a demurrer. LEGAL ANALYSIS Under both statute and court ru! Commonwealth party is directed to also s Pa.R.C.P. 422(a). Specifically, 37 Pa. Cod Commonwealth agencies ... shall be made as set forth in subsection (b) ... Service of p1 of the Attorney General as set forth in subse as set forth in subsection (d).” 37 Pa. Code designated for service of process only in a e, a party that is serving process on any prve it on the OAG. 42 Pa.C.S. §8523(b) and p § 111.1 provides that “Service of process on at the principal office of the defendant agency rocess Shall also be made at the principal office ction (b), and at the Office of Attorney General § 111.1(a). “The office of the Attorney General ctions where venue is located in the following counties is as follows: ... Beaver — Torts Litigation Unit, 4 Floor, Manor Building, 564 Forbes Avenue, Pittsburgh, Pennsylvania 1 5219.” 37 Pa. Code. § 111.1(d)(2). The overarching rule hinges on the firm notion that “shall” refers to an act that is mandatory. See Coretsky v. Bd. of Commissioners, 520 Pa. 513, 518 , 555 A.2d 72, 74 (1989) (opining that “by definition, ‘shall’ is mandatory”). The relevant portion of § 37 Pa. Code § 111.1 states that “[S]ervice of Process on Commonwealth agencies ... shall be made ...” Applying the established interpretation, this Court deems service u pon both the principal OAG and the office designated within Beaver County is mandatory for this Court to have in personam jurisdiction over Defendant. Plaintiffs commenced this action on September 3, 2020. Shortly thereafter, Plaintiffs served PennDot on September 22, 2020. Pursuant to 37 Pa. Code § 111.1 , the OAG was also required to be served. While Plaintiffs argue that, during their e-mail exchange, Counsel for Defendant agreed to accept service on behalf of the OAG with no deadline,® Counsel for Defendant states clearly that the OAG was not served and that Defendants were not waiving § 111.1 and the requirements of service.?7 Rather, Counsel for Defendant would sign an Acceptance of Service on behalf of the OAG if an extension to file a responsive pleading was provided.8 Counsel for Plaintiff never responded to that stipulation and never effected service. Despite other correspondences between the parties’ Counsel, on December 21, 2020, after a case management conference, Plaintiffs’ Counsel emailed Defendant’s Counsel apologizing for missing the e-mail regarding proper service of the OAG and attached an Acceptance of Service if Defendant’s Counsel was still willing to sign on behalf of the OAG.9 The Acceptance of Service was never signed on Defendant’s behalf. Shortly thereafter, Defendant filed Preliminary Objections raising the issue of improper service due to lack of personal jurisdiction.1° In addition to the requirements af service in regards to where and to whom, there is also a requirement for the timing. Original process shall be served 8 Plaintiff's Response to Preliminary Objections of Defendant, { 4. ? Preliminary Objections of Defendant, Exhibit B. 8 Preliminary Objections of Defendant, Exhibit B. ° Plaintiff's Response to Preliminary Objections of Defendant, Exhibit D. The Court is deciding this matter pursuant to 1028(a){1) and not to the statute of limitations which is implicated. It should be noted that the Plaintiff did not file preliminary objections to the preliminary objections as would be procedural requirement on that issue... Farinacci v. Beaver Cty. Indus. Dev. Auth., 510 Pa. 589, 51 ] A.2d 757 (1986). within the Commonwealth within thirty (30) days after the issuance of the writ or the filing of the Complaint. Pa. R.C.P. No. 401. Pursuant to Pa. R.C.P. No. 401, the deadline for service upon PennDot and the OAG was October 3, 2020. The Plaintiff has the burden to show that a good faith effort was made to effectuate service on the OAG. Leidich v. Franklin, 394 Pa. Super. 302 , 575 A.2d 914 (1990). During oral argument, Counsel for Plaintiff merely stated that they “believed they made a good faith effort to effectuate service.” They followed this by stating that they could have reissued the complaint and served it via sheriff, but in their minds, they thought that they had an agreement. The fact of the matter is that|mere belief and thought is not good enough. See Farinacci at 597 (dismissing Plaintiffs action due to failing to provide an explanation for counsel’s inadvertence which could substantiate a finding that Plaintiff made a good faith effort to effectuate service). The OAG was not served at all, let alone within the required timeframe. Further, the complaint was never reinstated by the Plaintiff after the original filing on September 3, 2020. Simple neglect and mistake to fulfill the responsibility to see that requirements for service are carried out is enough to constitute a lack of good faith on the part of the plaintiff. Rosenberg v. Nicholson, 408 Pa. Super. 502 , 597 A.2d 145 (1991). The only time a court may give a plaintiff the opportunity to cure the defect is where there is no prejudice suffered by the opposing party. Saleem v. Department of Corrections, 238 A.3d 544 (2020). The court has held that where the OAG does not receive actual notice ofjthe lawsuit, the Defendant would have been prejudiced if Plaintiff was allowed ta commence the action after the Statute of Limitations has expired. Rosenberg at 507 ; Compare McCreesh v. City of [6] Philadelphia, 585 Pa. 211 , 888 A.2d 664 (2 prejudiced due to the fact that it had actual copy of a Writ prior to the expiration of bo 30-day period of service). PennDot argues that to permit serv and the court agrees. The law provides the 005) (finding that Defendant was not notice of the litigation by means of a ith the Statute of Limitations and the rice at this time would be prejudicial Defendant with the opportunity to be represented by the OAG. See Reaves v. Knauer, 979 A.2d 404 (Pa. Commw. Ct. 2009) (opining that in actions against Cot entitled to representation by the Attorney service to the OAG, the defendant is mmonwealth parties, defendants “are General”). Without proper and timely stripped of a fundamental right to representation. The Plaintiff had a reasongble amount of time to cure the defect of service. Even after Defendant’s Counsel the defect by signing an Acceptance of Ser failed to do so. Such a failure to serve th defect. See Kreidie v. Department of Reve (stating that such a failure “cannot be o} gave Plaintiff's Counsel a way to cure vice on behalf of the OAG, the Plaintiff e Attorney General constitutes a fatal nue, 156 A.3d 380 (Pa. Cmwlth. 2017) verlooked,” “cannot be excused,” and “cannot be waived,” and therefore constitutes a “fatal defect appearing on the face of the record”). Thus, the court concludes Plaintiff has failed to effectuate proper ar action shall be dismissed. that since the statute has expired and d timely service to the OAG Plaintiff's CONCLUSION Based on the foregoing analysis, the Court makes the following conclusions: 1. Plaintiff failed to effectuate original service of process upon the Office of the Attorney General and at the OAG designated for service of process where venue is location within Beaver County as pe 2. Plaintiff did not satisfy 37 Pa. Cos jurisdiction; 3. Service of process must be made wit Complaint as per Pa. R.C.P. No. 422; 4. Proper service has not been made a Therefore, Defendants preliminary Rule 1028(a)(1) is hereby sustained and An Order consistent with the terms this same date. r 37 Pa. Code § 111 ; He § 111.1 and the Court lacks in personam thin thirty (30) days of the filing of the nd the statute has run; and objections in the nature of a demurrer per Plaintiffs’ Complaint is dismissed. of this Memorandum Opinion will be issued IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY PENNSYLVANIA MASON R. HOLBROOK and DIANE L. HOLBROOK, his wife, : CIVIL DIVISION — LAW Plaintiffs, : VS. Case No.: 10906 of 2020 PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Defendant. ORDER AND NOW, this \ 5 day of |March, 2021, upon consideration of the preliminary objections filed on behalf of Defendant PennDOT on January 5, 2021, along with the briefs filed by the parties in support of, and in opposition to, said preliminary objections, coupled with the arguments|of counsel before the Court conducted on February 10, 2021, it is HEREBY ORDERED and DECREED that Defendant’s preliminary objection is SUSTAINED. nv Si BWW 1202 mo vee BY THE COURT: LP Ve [7] Sane ee ‘ yah \09 ogee No LON ows Be %