Judges Opinions Public Notices, — September 2, 2020 12:34 — 0 Comments

Public Notices, September 2, 2020

Volume 58, No. 5

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

PETITION FOR LEAVE OF COURT

ORPHANS’ COURT DIVISION NOTICE

TERMINATION OF PARENTAL RIGHTS

 

TABLE OF CONTENTS

Ray Simon v. Dennis Herman, et al., and Benny Torres, et al.

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF NANCY H. ORSINI, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael A. Orsini, Executor

 

Edward P. Seeber, Esquire

JSDC Law Offices

Suite C-400

555 Gettysburg Pike

Mechanicsburg, PA 17055

 

ESTATE OF GENEVA M. KNARR A/K/A GENEVA MARILLA KNARR, late of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lisa Allwein, Executrix

 

Megan C. Huff, Esquire

Nestico Druby, P.C.

1135 East Chocolate Avenue

Suite 300

Hershey, PA 17033

 

ESTATE OF LOUISE ALICE TRUMP A/K/A LOUISE A. TRUMP, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Karen L. Trump, Executor

1509 Turnpike Road

Elizabethtown, PA 17022

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

 

ESTATE OF RUTH A. COLEMAN, late of Annville, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Geraldine E. Barringer, Executrix

70 North Heidelberg Road

Robesonia, PA 19551

 

Sean J. O’Brien, Esquire

534 Court Street

Reading, PA 19601

 

ESTATE OF EDNA G. BROWER, late of the Township of Jackson, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Joyce A. Dresch, Executor

1033 School House Road

Annville, PA 17003

 

Eric M. Brower, Executor

18 Pennsylvania Avenue

Shillington, PA 19607

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF ADAM WAGNER A/K/A ADAM D. WAGNER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Judy M. Wagner, Executrix

 

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF MELVIN E. HOFFER late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Elaine P. Hoffer, Executrix

 

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JESSICA A. ROMANOFF, late of Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael P. Romanoff, Executor

12 Plymouth Drive

Jonestown, PA 17038

 

Frederick S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RUTH E. KEENEY, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Delmas L. Keeney, Executor

 

Jessica F. Greene, Esquire

Walters & Galloway, PLLC

54 East Main Street

Mechanicsburg, PA 17055

 

ESTATE OF CARL G. GOOD, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jerry D. Good, Executor

 

Young and Young

44 South Main Street

PO Box 126

Manheim, PA 17545

 

 

SECOND PUBLICATION

 

ESTATE OF CARMEN L. FORNEY, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Gary L. Forney, Executor

 

Gerald J. Brinser, Esquire

PO Box 323

Palmyra, PA 17078

 

 

ESTATE OF RICHARD LYNN HORST, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Jeanne S. Miller, Administratrix

754 Stracks Dam Drive

Myerstown, PA 17067

 

Timothy T. Engler, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF FRANK J. HARVATINE A.K.A. FRANK J. HARVATINE, JR., late of Cleona, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lisa K. H. Ingalls, Executrix

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA  17033

 

ESTATE OF ROBERT E. MEYER, late of East Hanover Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Paul R. Meyer, Executor

 

Keith D. Wagner, Esquire

6 East Main Street-2nd Floor

P.O. Box 323

Palmyra, PA 17078-0323

 

ESTATE OF CARL S. MAURUS, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Cheryl and Henry Maurus, Co-Executors

21 Deep Run Road

Myerstown, PA 17067

 

Timothy T. Engler, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF MIRIAM A. RUNKLE, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Charles E. Runkle, Co-Executor

Dennis J. Runkle, Co-Executor

 

Gerald J. Brinser, Esquire

PO Box 323

Palmyra, PA 17078

 

ESTATE OF RAY R. SATTAZAHN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrices.

 

Phyllis S. Seyfert, Co-Executrix

1284 Mt. Zion Rd

Lebanon, PA 17046

 

Barbara M. Lentz, Co-Executrix

1179 Greble Rd

Lebanon PA, 17046

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF LARRY A. GODLEVSKI, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Wayne A. Burggraff, Executor

 

Gerald J. Brinser, Esquire

PO Box 323

Palmyra PA, 17078

 

 

THIRD PUBLICATION

 

ESTATE OF RICHARD J. BATZ, late of Lebanon County Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Tammy Jo. Murphy, Co-Executrix

Michael R. Batz, Co-Executor

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Suite D

Lebanon, PA 17042

 

ESTATE OF IRWIN H. SIEGEL, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Branch Banking and Trust Company, Executor

Estate of IRWIN H. SIEGEL

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF DAVID H. BARR, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Melissa S. Strickler, Administratrix

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JEAN D. ASHBY, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Barbara Goux, Executrix

1635 E. Ocean Boulevard, #D5

Long Beach, CA 90802

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

 

ESTATE OF ROBERT SWAVELY ADAMS, a/k/a ROBERT S. ADAMS, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathleen R. Scholl, Executrix

 

Daniel D. Hill, Esquire

Bellomo & Associates, LLC

3198 East Market Street

York, PA 17042

 

ESTATE OF KATHY JO WERT, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Leonard P. Wert

1719 Old Rothsville Road

Lititz, PA 17543

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF RONALD S. ENGLE, JR., late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Sandra L. Engle, Executrix

Gerald J. Brinser

Brinser Wagner

PO Box 323

Palmyra, PA 17078

 

ESTATE OF HATTIE M. MILLER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Leah F. Kuhns, Executrix

5225 Wilson Lane, Apt 2112

Mechanicsburg, PA 17055

 

Andrew J. Morrow, Esquire

Spitler, Kilgore & Enck, PC

522 S. 8th Street

Lebanon, PA 17042

 

ESTATE OF RAYMOND DAUGHERTY a/k/a RAYMOND F. DAUGHERTY, late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Susan Elaine Hays, Executrix

2625 Leslie Road

Mount Airy, MD 21771

 

Karl Kreiser, Esquire

552 Locust Street

Columbia, PA 17512

 

ESTATE OF CARL A. THIERWECHTER, SR., late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Julie A. Heintzelman, Administratrix

Caleb J. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown,  PA 17038

 

PETITION FOR LEAVE OF COURT

 

YOU ARE HEREBY NOTIFIED that the Jackson Township Board of Supervisors has filed a Petition for Leave of Court to sell Lot 107, Wheatland Manor, Jackson Township, Lebanon County, Pennsylvania. This filing can be viewed in the Lebanon County Orphans’ Court at Docket No. 2020-455

 

A hearing is scheduled for September 11, 2020 at 2:00 am in Courtroom 3 of the Lebanon County Courthouse located at 400 South 8th Street, Lebanon PA 17042. Any resident or group consisting of residents of the Township have the right to file a protest, and in the discretion of the Court may be heard individually or through counsel, or to intervene in such an action and be a party thereto. Secretary, Jackson Township

 

ORPHANS’ COURT DIVISION NOTICE

 

Notice is hereby given that the following accounts in decedents estates, guardianships and trusts have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon County, and that the same will be presented of the Court of Common Pleas-Orphans’ Court Division of said County for confirmation NISI on

 

Tuesday, September 8, 2020

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

FIRST AND FINAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION FILED BY EXECUTORS OR ADMINISTRATORS

 

  1. Giunta, Robert D., dec’d., James Cherry, Exr., Jason J. Schibinger, Atty.

 

  1. Buchter, Geraldine A., dec’d., Dennis A. Buchter & Raymond H. Buchter, Exrs., John E. Feather, Jr., Atty.

 

All of the aforesaid accounts and statements of Proposed Distribution will be confirmed ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are filed within twenty (20) days after the same are confirmed NISI.

 

BRIAN CRAIG

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

 

 

TERMINATION OF PARENTAL RIGHTS

 

NOTICE

 

NOTICE IS HEREBY GIVEN THAT LUZ MARIA RIVERA AND GABRIEL

JIMENEZ HAD A SON IN 2017, WHO WAS BORN IN LANCASTER COUNTY,

PENNSYLVANIA AND A SON IN 2018, WHO WAS BORN IN LEBANON COUNTY,

PENNSYLVANIA. A HEARING WILL BE HELD IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA IN COURTROOM NO. 4, BEFORE THE

HONORABLE CHARLES T. JONES, JR., JUDGE OF THE SEVERAL COURTS OF

LEBANON COUNTY, PENNSYLVANIA ON THE 14 TH DAY OF SEPTEMBER, 2020 at

1:30 P.M. AT THE LEBANON COUNTY MUNICIPAL BUILDING, LOCATED AT 400

SOUTH EIGHTH STREET, LEBANON, PENNSYLVANIA ON THE THIRD FLOOR.

ALL PARENTAL RIGHTS OF THE FATHER TO THE CHILDREN SHALL BE

TERMINATED BY THE COURT ON THE DATE OF THE HEARING UNLESS THE

FATHER APPEARS AT THE HEARING FOR THE PURPOSE OF OBJECTING TO

TERMINATION OF HIS PARENTAL RIGHTS. THE FATHER MAY ALSO FILE A

WRITTEN OBJECTION OR DEFENSES, PERSONALLY OR BY ATTORNEY TO

SUCH TERMINATION WITH THE COURT PRIOR TO THE HEARING.

 

WRITTEN OBJECTIONS SHALL BE FILED WITH THE CLERK OF ORPHANS

COURT AT THE ORPHANS COURT OFFICE LOCATED AT THE LEBANON COUNTY

MUNICIPAL BUILDING, 400 SOUTH EIGHTH STREET, LEBANON, PENNSYLVANIA.

THE OBJECTIONS SHALL BE FILED IN THE COURT OF COMMON PLEAS,

LEBANON COUNTY, PENNSYLVANIA, ORPHANS COURT DIVISION – NO. 2020-

508.

 

ROBERTA J SANTIAGO, ESQUIRE

HENRY & BEAVER, LLP

937 WILLOW STREET

  1. O. BOX 1140

LEBANON, PA 17042

(717) 274-3644

 

JUDGES OPINION

 

Ray Simon v. Dennis Herman, et al., and Benny Torres, et al.

 

Civil Action-Law-Jurisdiction-Service of Original Process-Defects in Service of Process-Preliminary Objections-Actual Notice-Participation in Merits of Litigation

 

Nearly three (3) years ago, Plaintiff filed a Complaint against Defendants after falling on or near property owned by Defendant Benny Torres (“Torres”).  Torres has filed Preliminary Objections to the Complaint alleging that the Complaint filed almost three (3) years before never was served upon him despite the fact that Plaintiff was notified by the Sheriff of the address of his residence in November of 2016 and still has not effectuated service upon him.

 

  1. A civil case typically is commenced with the filing of a complaint setting forth factual allegations supporting a claim for relief, after which the defendant must be notified of the complaint through service of original process.

 

  1. If original process cannot be served upon a defendant within the timeframe set by law, a complaint must be reinstated until original process can be served.

 

  1. When a defendant has actual notice of litigation and participates in the merits of that litigation, the defendant can be deemed to have waived an objection to defective service.

 

  1. In light of the fact that Torres had actual knowledge of the Complaint since at least June of 2017 when he was advised by his insurance carrier of the Complaint, hired counsel, participated in discovery and waited until November of 2019 to lodge Preliminary Objections to the Complaint, the Court will prioritize substance over procedure to enable adjudication of the substantive dispute such that the Preliminary Objections will be overruled.

 

L.C.C.C.P. No. 2016-01656, Opinion by Bradford H. Charles, Judge, March 19, 2020.

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

RAY SIMON                                                         :  No. 2016-01656

                                                                            :

                 Plaintiff                                              :

                                                                            :

  1. :

                                                                            :

DENNIS HERMAN, et al.                                     :

                                                                            :

BENNY TORRES, et al.,                                      :

                 Defendants                                         :                  

                  

 

O R D E R

 

AND NOW, this 19th day of March, 2020, in accordance with the attached Opinion, the Preliminary Objections filed by Benny Torres are DENIED.  Benny Torres is directed to file an answer to the Complaint within thirty (30) days from the date of this Order.

A Status Conference is to be conducted in this case on May 4, 2020 at 1:30pm.  The intent of the Court is to establish a case management scheduling order at the time of the Status Conference.

 

 

 

 

 

 

 

BY THE COURT:

 

 

______________________,J.

BRADFORD H. CHARLES

 

 

BHC/pmd

 

cc:     Court Administration

Marc F. Greenfield, Esq. and Timothy J. Domis, Esq. // Two Penn Center Plaza, Suite 200, 1500 J.F.K. Blvd., Philadelphia PA 19102

Timothy J. Huber, Esq. // 515 W. Chestnut Street, Lancaster PA 17603

Alan S. Battisti, Esq.// One West Broad Street, Suite 700, Bethlehem PA 18018

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

RAY SIMON                                                         :  No. 2016-01656

                                                                            :

                 Plaintiff                                              :

                                                                            :

  1. :

                                                                            :

DENNIS HERMAN, et al.                                     :

                                                                            :

BENNY TORRES, et al.,                                      :

                 Defendants                                         :                  

                  

APPEARANCES:

 

Marc Greenfield, Esquire                                             FOR PLAINTIFF

SPEAR, GREENFIELD, RICHMAN & WEITZ, P.C.

 

Timothy J. Huber, Esquire                                            For DEFENDANT

BUZGON DAVIS LAW OFFICES                                    Dennis Herman

 

Alan Battisti, Esquire                                                   For DEFENDANT

KING, SPRY, HERMAN, FREUND & FAUL, LLC   Benny Torres

 

 

 

OPINION BY CHARLES, J., March 19, 2018

 

Today is a reprise – with twists – of an issue we adjudicated in the above-referenced case on February 16, 2018.  We began that Opinion by stating: “Seldom has this jurist been less confident or more confused about a legal issue than he is by the one now before the Court.”  If anything, the dispute now before this Court renders us even less confident and more confused.  It is with this candid admission that we will undertake an analysis of the service-related issue that has been presented by the parties.

 

  1. FACTS

On November 19, 2019, Benny Torres (hereafter TORRES) filed preliminary objections to a complaint that had been filed almost three (3) years previously.  The preliminary objections alleged that the complaint had never been served.  Plaintiff Ray Simon (hereafter SIMON) filed a response to the preliminary objections in which he alleged, inter alia, that TORRES had been fully participating in the litigation by conducting discovery, etc.  Because these claims were, to say the least, unusual, we scheduled a Factual Hearing to learn precisely what had occurred.  That Factual Hearing occurred on January 23, 2020.

As a result of the Factual Hearing, we issued detailed findings of fact.  Rather than summarize, we will simply recite all of the findings that we articulated in open court:

  1. Since approximately 2004, Defendant, Benny Torres, (hereinafter Torres) owned property located at 743 Church Street in the City of Lebanon.

 

  1. At the time Torres purchased the Lebanon County property, he was a resident of New York City. He remained a resident of New York City until March of 2013.

 

 

  1. In March of 2013, Torres moved to 2625 North 2nd Street, Philadelphia, PA. Torres notified Lebanon City authorities and all providers of utilities about his change of address.  At no time did Torres hide or attempt to hide his address or his whereabouts from anyone.

 

  1. It is alleged that Plaintiff, Ray Simon, Jr., suffered a fall on February 5, 2015. The location of this fall occurred at or near the property on Church Street that is owned by Torres.

 

 

  1. On November 3, 2016, Ray Simon filed a civil complaint against Dennis Herman and Torres. The address for Torres contained in the civil complaint was 743 Church Street, Lebanon, PA 17046.  At no time pertinent hereto, did Torres reside at that address.

 

  1. The Lebanon County Sheriff’s Department attempted to serve Torres without success. On November 17, 2016, the Sheriff issued a return of service that indicated that it could not locate Torres.  However, the return of service form stated: “New address for Defendant is 2625 North 2nd Street, Philadelphia, PA 19133.”   A copy of this return of service was provided to Plaintiff’s counsel shortly after November 17, 2016.

 

  1. Plaintiff reinstated his complaint on several occasions. Pertinent to the issue now before this Court is a reinstatement praecipe filed by Plaintiff on July 27, 2017.  A copy of the reinstated complaint was sought to be served by Plaintiff upon Torres at 2625 North 2nd Street in the City of Philadelphia.  Service was attempted on May 9, 2017, May 11, 2017, May 17, 2017, and May 23, 2017.  At none of these times was Torres found to be at the 2625 North 2nd Street premises.  On the last occasion a neighbor indicated to process servers that a family by the name of Agosto resided at the 2625 North 2nd Street property.

 

  1. Apparently Dennis Herman is insured by the same

insurance company that insures Torres.  This insurance company received actual notice of the lawsuit against Torres by virtue of receiving documents that were served and directed to Dennis Herman.  On June 1, 2017, counsel hired by the insurance company (Tuscarora Wayne Insurance Company) contacted Torres in order to advise him of this lawsuit.  In or about the same timeframe, Torres had a direct communication with Plaintiff, Ray Simon, Jr., about the incident in question.  As of June 2017, Torres had actual knowledge of the existence of the lawsuit filed against him.

 

  1. Counsel hired by Tuscarora Wayne Insurance Company now represents Torres. Discovery in the above‑referenced matter is ongoing.  On November 5, 2019, a deposition of Ray Simon, Jr. was conducted at a law firm in Lancaster.  During that deposition counsel for Torres asked numerous substantive questions of Mr. Simon regarding the incident in question.

 

  1. On November 19, 2019, Torres filed Preliminary Objections to the complaint based primarily upon the failure of Plaintiff to effectuate service. Torres filed a brief in support of those Preliminary Objections.  The Plaintiff filed a response on December 12, 2019.

 

  1. At no time, up to and including today’s date, has Plaintiff served Torres with a copy of the complaint.

 

Because the facts presented at the January 23, 2020 hearing did not trigger any obvious conclusions, we solicited briefs from both sides.  Those briefs have now been filed.  The request of TORRES to dismiss the complaint based upon lack of service is now before this Court for disposition.

 

  1. LEGAL PRINCIPLES

Typically, a civil case is commenced with the filing of a complaint setting forth factual allegations that support a claim for relief.  The next step in any civil case was, is and likely always will be to notify the defendant that a law suit has been filed through service of what has come to be known as “original process”.  Specific rules have been promulgated to define how service of original process must be effectuated.  See, Pa.R.C.P 400 Et. Seq.

In most situations, service of original process occurs quickly and easily.  But how does the law respond to those inevitable scenarios where a defendant disappears either intentionally or fortuitously?

In law school, this jurist was taught that if original process could not be immediately served, the writ of summons would have to be re-issued or the complaint would have to be reinstated.  We were taught time and again “If you fail to protect the record in this way, your client’s case will be dismissed and you will probably be sued for malpractice.”  For most of Pennsylvania’s history, a fact pattern such as the one at bar would have been relatively easy to adjudicate; without reinstatement of a complaint until original process is served, the plaintiff’s cause of action would be dismissed.

As we outlined in our Opinion of February 16, 2018, the law in Pennsylvania regarding service of original process has changed dramatically since this jurist attended law school.  In our Opinion, we used nine (9) pages to outline the evolution that has occurred in Pennsylvania law.  We will not kill trees by repeating those changes.  Rather, we will simply incorporate by reference what we wrote in our Opinion of February 16, 2018.  It bears noting that we ended that Opinion by stating:

“…We are not completely confident about our conclusion…unfortunately, our research has not clearly revealed where the line in between excusable and inexcusable tardiness exists.  For today, we will emphasize the lack of undue prejudice suffered by HERMAN and we will therefore err on the side of permitting the above-referenced case to continue.” (Slip opinion at page 13;emphasis supplied.)

 

To further complicate what is already complicated, there are Appellate cases that have applied the doctrine of waiver to defective service.  Specifically, when a defendant has actual notice of litigation and participates in its merits, he/she can be deemed to have been waived an objection to defective service.  See, Cathcart v. Keene Industrial Insulation, 471 A.2d 293 (Pa. Super. 1984).

This doctrine of waiver was applied in the recent case of Sharpe v. McQuiller, 206 A.3d 1179 (Pa. Super. 2019).  In Sharpe, the Superior Court acknowledged that the rules governing service were not scrupulously followed.  Nevertheless, because the defendant actively participated in the discovery process, the court deemed any objection to defects in service to have been waived; “The record supports the trial court’s finding that she waived any defects in service by participating in the merits of the law suit.” Id at page 1184. See also, O’Barto v. Glossers Stores Inc., 324 A. 2d 474 (Pa. Super. 1974) (“Once a party takes action on the merits of a case, he waives his right to object to defective service of process.”)

 

 

III.     ANALYSIS

Whenever this Court is confronted with confusion over the state of the law, our go-to, fall-back position is to weigh the equities in an effort to discern what is and is not fair.  Even that “go-to” analytical paradigm yields conflicting considerations in this case.  Based upon all of the testimony presented in January, we cannot completely sympathize with the positions of either side.

With respect to SIMON, we cannot ignore or excuse the complete and utter failure to effectuate service of process.  Even up until today.  Even despite being given notice by the Sheriff of TORRES’ residence back in November of 2016.  This is not simply a case where the rules have been technically violated.  This is a case where the Plaintiff has turned his back upon a fundamental precept of due process – that every respondent must be given notice of the claim against him/her.

On the other hand, we cannot view TORRES as an innocent victim of an unscrupulous plaintiff who is seeking to extract monetary damages from an unsuspecting and unwitting defendant.  Here, TORRES had actual knowledge of the lawsuit filed against him since at least June of 2017.  Through his insurance company, TORRES hired a lawyer.  He also participated in the discovery process.  Moreover, he waited until November of 2019 to file preliminary objections challenging service of original process.  Without question, TORRES acted in a way that could have lead a reasonable plaintiff to believe that defects in service would be overlooked.

Given that equity does not clearly favor either side in this dispute, and given the lack of any clear guiding legal precedent, how are we to adjudicate the issue now before this Court?  The answer is…with difficulty and without confidence!

Ultimately, we will prioritize substance over procedure.  We will err on the side of allowing a substantive dispute to be resolved on its merits as opposed to preventing those merits from being heard based upon defects of procedure.  To be sure, the procedure that Plaintiff ignored implicates precepts such as notice that are fundamental to our system of justice.  Still, we cannot ignore the fact that TORRES, or his legal representatives, had actual knowledge of this lawsuit and participated substantively in it.  In the end, it is this actual notice and participation that will cause us to rule in favor of SIMON.

We will enter an Order today to DENY the Preliminary Objections filed by TORRES.  We will require TORRES to file a formal answer to the Complaint so that the above-referenced matter can proceed on its merits.  In addition, we will sua esponte schedule a Status Conference so that scheduling deadlines can be imposed.  This case is now more than three (3) years old and a case management plan must be developed.

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