McLane Company, Inc., and AIG a/s/o McLane Company, Inc., v. Joseph D. Cummings, Brad Collins, Collins Trucking, Inc., Daimler Trucks North America, LLC, and Freightliner Trucks No. 2014-00894

Civil Action-Law-Negligence-Preliminary Objections-Statute of Limitations-Writ of Summons-Service-Actual Notice-Prejudice

Following a motor vehicle accident involving a series of collisions between a vehicle, a freight line truck and a concrete truck that occurred on May 10, 2012 that resulted in the deaths of two (2) individuals and the destruction of equipment and cargo, McLane Company, Inc., AIG and a/s/o McLane Company (“McLane”) filed a writ of summons against all defendants on May 9, 2014, one (1) day before the expiration of the two (2) year statute of limitations. McLane did not immediately serve the Writ of Summons upon Defendants, and that Writ of Summons was reissued on June 5, 2014, June 8, 2014, August 6, 2014, September 5, 2014, November 3, 2014 and November 28, 2014, respectively. The Writ of Summons was provided to the Lebanon County Sheriff’s Department for service on December 8, 2014. Following service of the Writ of Summons, a Rule was issued upon McLane to file a Complaint, and that Complaint was lodged on March 26, 2015 and contained causes of action in negligence and products liability that were identical to causes of action earlier initiated by the decedents’ estates and Verizon of Pennsylvania at other action numbers. Defendants filed Preliminary Objections to McLane’s Complaint asserting that Defendants’ seven (7) month delay in serving the Writ of Summons rendered that Writ of Summons a legal nullity.

1. Prior to 1976, issuance of a writ of summons tolled the statute of limitations for a period of time not longer than the period of the original limitation. In Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), the Pennsylvania Supreme Court held that a writ of summons shall remain effective to commence an action only if the plaintiff refrains from a course of action that serves to stall in its tracks the legal machinery set in motion and the plaintiff promptly delivers of the writ of summons to the Sheriff for service.

2. Subsequently, the Pennsylvania Supreme Court in McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005), held that a defendant sufficiently will be protected from defending against a stale claim without the draconian action of dismissing an action based upon technical failures that do not prejudice the defendant. Accordingly, the Pennsylvania Supreme Court indicated that it would dismiss a claim only where a plaintiff has demonstrated an intent to stall the judicial machinery or a plaintiff’s failure to comply with the rules of civil procedure has prejudiced a defendant.

3. While McLane waited seven (7) months to serve the Writ of Summons and provided no reason for this delay, the record is clear that Defendants were well aware of the motor vehicle accident of May 10, 2012 and their potential liability relating to the same by virtue of correspondence from McLane that it desired to recover damages to its property from Defendants. By virtue of the actual notice of the potential claim and causes of action, Defendants did not sustain any prejudice as a result of the seven (7) month delay in the service of McLane’s Writ of Summons.

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA CIVIL DIVISION NO. 2014-00894

McLANE COMPANY, INC., and AIG a/s/o McLANE COMPANY, INC., Plaintiff v.

JOSEPH D. CUMMINGS, BRAD COLLINS, COLLINS TRUCKING, INC., DAIMLER TRUCKS NORTH AMERICA, LLC and FREIGHTLINER TRUCKS, Defendants

ORDER OF COURT

AND NOW, this 14^th day of October, 2015, in accordance with the attached Opinion, we issue the following Order regarding the Preliminary Objections filed by Defendants Daimler Trucks North America, LLC, Brad Collins and Collins Trucking, Inc.:

1. Defendants’ Preliminary Objection seeking to dismiss the Complaint based upon a violation of the Statute of Limitations is DENIED.

2. The Preliminary Objections of the Collins Defendants seeking to dismiss claims of negligent entrustment are GRANTED.

3. The Preliminary Objections of the Collins Defendants seeking to strike paragraphs 29(c), 29(f) and 29(i) are GRANTED.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES

Warren Siegfried, Esquire For McLane Company, Inc.

WAYMAN, IRVIN & McAULEY, LLC

Kevin L. Connors, Esquire For Joseph D. Cummings

CONNORS LAW, LLC

Thomas S. Lane, Esquire For Freightliner, LLC and Daimler Trucks of

WEBSTER SZANI LLP North America, LLC

Matthew R. Clayberger, Esquire For Collings Trucking, Inc. and Brad Collins

THOMAS, THOMAS & HAFER, LLC

OPINION BY CHARLES, J., October 14, 2015

Before us is the question of whether the above-referenced case should be dismissed because Plaintiffs failed to timely effectuate service of a Writ of Summons filed one day before the statute of limitations expired. For most of the history of Pennsylvania jurisprudence, the consequences of failing to serve a Writ of Summons were fairly clearly laid out. However, beginning in 1976, Pennsylvania’s highest court began taking a more flexible approach to the question of when a Writ of Summons must be served in order to toll the running of a statute of limitations. While this is an admittedly close call, we hold that because the Defendants were on actual notice of the theories of liability proffered against them, a seven month delay by Plaintiffs in serving their Writ of Summons should not require the above-referenced case to be dismissed. Our reasons for this decision, and our analysis of all other Preliminary Objections filed by the Defendants will be set forth in the following Opinion.

I. FACTS AND PROCEDURAL BACKGROUND

On May 10, 2012, a horrific accident occurred on Route 72 in Lebanon County. At that time, a vehicle operated by Joseph Cummings (hereafter “CUMMINGS”) collided with a Freightliner truck occupied by Michael Mrazik and Michael Horner. Thereafter, a concrete truck owned by Collins Trucking, Inc. and operated by Brad Collins (hereafter collectively referred to as “COLLINS”) collided with the Freightliner truck. As a result of these series of collisions and the explosion that occurred, Mr. Mrazik and Mr. Horner tragically died and a plethora of equipment and cargo was destroyed.

On November 22, 2013, the Estate of Michael Mrazik initiated a lawsuit against COLLINS, Daimler Trucks of North America, LLC (hereafter “DAIMLER”) and Freightliner, LLC (hereafter ‘FREIGHTLINER”). Shortly thereafter, Verizon of Pennsylvania also initiated a Complaint against all Defendants. Both of these Complaints set forth causes of action for negligence and products liability. Each of the Complaints was served upon all Defendants well before anything occurred in the above-referenced docket.

On May 9, 2014 – one day before the expiration of the statute of limitations – McLane Company, Inc., AIG and a/s/o McLane Company (hereafter “McLANE”) filed a Writ of Summons against all of the Defendants. Although the Writ was not promptly served, email communication was initiated between McLANE’s counsel and counsel for Defendants that referenced the May 10, 2012 accident. These email communications sought to arrange inspection of the COLLINS’ cement truck. In addition, a letter was sent by McLANE’s counsel to counsel for COLLINS on June 14, 2012 confirming the request for preservation of the COLLINS’ cement truck and related data.

For some reason that has not been adequately explained, McLANE chose not to immediately serve its Writ of Summons upon the Defendants. However, the Writ was reissued on June 5, 2014, July 8, 2014, August 6, 2014, September 5, 2014, November 3, 2014, and November 28, 2014.

Finally, on December 8, 2014, the Writ of Summons was given to the Lebanon County Sheriff for service. Service was then promptly effectuated. A Rule was issued promptly requiring McLANE to file a Complaint. McLANE did so on March 26, 2015. The causes of action filed by McLANE were identical to those initiated earlier by MRAZIK, Verizon and Horner.

All Defendants filed Preliminary Objections to McLANE’s Complaint. A summary of those preliminary Objections is as follows:

(1) CUMMINGS filed Preliminary Objections on April 13, 2015. CUMMINGS requested that the allegations of recklessness found in the Complaint should be stricken as unsupported by any facts set forth in the Complaint.

(2) On the same day, COLLINS filed preliminary objections alleging that the Complaint should be dismissed based upon the lack of effort by McLANE to serve the Writ of Summons Promptly. In addition, COLLINS challenged Counts VIII and IX based upon the precept that a plaintiff cannot assert claims for negligent hiring, retention and entrustment when a plaintiff has asserted vicarious liability. COLLINS also argued that McLANE cannot recover workers compensation benefits paid to Mrazik and Horner because those amounts are necessarily encompassed within the litigation filed by those plaintiffs. Finally, COLLINS asserted that Paragraphs 29(c), 29(f) and 29(i) of the Complaint should be stricken due to insufficient specificity.

(3) On April 17, 2015, DAIMLER filed Preliminary Objections that were similar to those filed by COLLINS.

(4) The Preliminary Objections of CUMMINGS were resolved by the parties. As a result, CUMMINGS filed an Answer with New Matter to the Complaint on May 27, 2015.

(5) Because the issue of whether McLANE’s efforts at service were in good faith was a factual issue, we scheduled a meeting with counsel for August 28, 2015. At that meeting, all counsel acknowledged that a factual hearing would not be necessary. Counsel agreed on the following facts:

A Writ was filed on May 9, 2014 and was reissued six times before it was served on December 8, 2014.

No effort was made by McLANE to serve the Writ between May 9, 2015 and December 8, 2014.

There were no verbal discussions between counsel for McLANE and counsel for Defendants. However, a letter and emails were sent that focused upon McLANE’s request that COLLINS preserve evidence for purposes of impending litigation.

Defendants were on actual notice of the accident that occurred on May 10, 2012 and of the theories of liability that would be proffered against them as a result of said accident.

Brad Collins was working within the course and scope of his duties for Collins Trucking, Inc. when the accident occurred.

Following our meeting with counsel on July 31, all parties in the above case have filed Briefs in support of their respective positions. This Court has conducted extensive legal research to supplement what the parties presented. We issue this Opinion in support of our belief that the above-referenced matter should be permitted to proceed.

II. DISCUSSION

The primary issue before us, and the issue that the parties spent ninety percent of their time addressing, is the issue of whether the unserved Writ of Summons filed on May 9, 2014 should be permitted to toll the statute of limitations. Although we will likewise spend most of our efforts addressing this threshold issue, we also recognize that COLLINS has presented a secondary question regarding negligent entrustment and a tertiary argument regarding McLANE’s claims of general negligence. After setting forth our analysis of the parties’ primary concern, we will briefly address the additional issue as well.

A. Writ of Summons and Statute of Limitations

Everyone agrees that a two year statute of limitations applies to McLANE’s primary causes of action. Everyone also agrees that McLANE’s Writ of Summons was filed one day prior to the expiration of that statute of limitations. Further, everyone acknowledges that the Writ of Summons was not served until almost seven months after it was filed. The question we are asked to address is whether that seven-month delay renders the filing of the Writ of Summons a legal “nullity.” Unfortunately, this is not an easy question to answer.

Prior to 1976, the law regarding service of a Writ of Summons was almost formulaic – when a Writ of Summons was issued, it tolled the statute of limitations for a period of time not longer than the period of the original limitations. See, e.g., Anderson v. Bernhard Realty Sales Co., Inc., 329 A.2d 852 (Pa.Super. 1974); Yefko v. Ochs, 263 A.2d 416 (Pa. 1970). In 1976, Pennsylvania’s highest court changed everything with its decision in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976).

In Lamp, the Court noted with dismay what it characterized as

[A] relatively common practice throughout the Commonwealth for attorneys to file a Praecipe with the Prothonotary to toll the statute of limitations but then, whether because settlement negotiations are in progress or because more time is needed to prepare the case, to delay or prevent service upon the Defendant.

Id. at 885. The Court concluded:

We now conclude that there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a Praecipe for a Writ of Summons and then having the Writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the processes of justice as speedy and efficient as possible.

Id. at 477.

To avoid continuation of a policy that it deemed unfair, the Pennsylvania Supreme Court created a new paradigm. The Court stated:

Accordingly, pursuant to our supervisory power over Pennsylvania courts, we rule that henceforth…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 set in motion… The Plaintiff shall be responsible for the prompt delivery of the Writ of Summons to the Sheriff for service [unless local practice requires the Prothonotary to do so].

Id. at 478.

One decade after Lamp, the Supreme Court again addressed service of a Writ of Summons in the case of Farinacci v. Beaver Co. Industrial Development Authority, 511 A.2d 757 (Pa. 1986). In Farinacci, the Plaintiff filed a Writ one day before the statute of limitations expired. Plaintiff’s counsel then misplaced the file and the Writ was not reissued until thirty-nine days later. Thereafter, the Writ was served promptly. The Court in Farinacci described Lamp as requiring “a good faith effort to effectuate notice of commencement of the action.” Id. at 759. However, the Court refused to equate counsel’s negligence with good faith. Rather, the Court stated:

As Plaintiffs have failed to provide an explanation for counsel’s inadvertence which could substantiate a finding that Plaintiffs made a good faith effort to effectuate service of the Writ, we are constrained to hold that the Order of the Court of Common Pleas granting Defendant’s preliminary objections and dismissing Plaintiff’s action was not an abuse of discretion, and was therefore proper.

Id. at 760.

In 2001, Pennsylvania’s highest court was again presented with a Writ of Summons service issue. In Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001), a plurality of the Court agreed that the Plaintiff did not act in good faith when he made only one effort to serve a Defendant in nine months. However, no majority of the Court could agree with respect to a more definitive test than what was articulated previously by Lamp.

In 2005, the Supreme Court finally settled on a test for assessing when an unserved Writ of Summons can toll the statute of limitations. In McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005), the Supreme Court accepted allocatur in order to clarify what constitutes a “good faith effort” by a plaintiff to effectuate notice so as to toll the statute of limitations. The Supreme Court noted that both the Superior Court and the Commonwealth Court “have struggled to apply the Lamp-Farinacci rule, with some panels requiring plaintiffs to comply strictly with the Rules of Civil Procedure related to the service of process…and other panels providing a more flexible approach….” Id. at 666. As between the two approaches, the Supreme Court of Pennsylvania opted for more flexible and liberal methodology:

We now adopt the more flexible approach, concluding that it sufficiently protects Defendant from defending against stale claims without the draconian action of dismissing the claims based on technical failings that do not prejudice the Defendant.

Id. at 666.

In McCreesh, a Writ of Summons was filed two days before the expiration of the statute of limitations. Plaintiff then attempted to serve the Writ. However, a Complaint was not filed until four months later. The Complaint was promptly delivered by personal service. In analyzing whether the Plaintiff employed a good faith effort to serve the Complaint, the Supreme Court focused on the question of whether the Defendant had actual notice of what was being alleged against him. The Court stated:

Neither our cases nor our rules contemplate punishing a plaintiff for technical missteps where he has satisfied the purpose of the statute of limitations by supplying a defendant with actual notice. Therefore, we embrace the logic of the Leidich [575 A.2d 914 (Pa.Super. 1990)] line of cases, which, applying Lamp, would dismiss only those claims where plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs’ failure to comply with the rules of civil procedure has prejudiced defendant.

Id. at 674.

Following McCreesh, we found one Pennsylvania Superior Court case of note. In Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122 (Pa.Super. 2007), a Writ of Summons was filed on September 19, 2003. Service was attempted but the Defendant was not found. Thereafter, the matter remained dormant. On March 31, 2004, the Plaintiff filed a Praecipe to Reissue the Writ. The Superior Court held that even under McCreesh, the Plaintiff could not establish the good faith necessary to enable the Writ to toll the statute of limitations.

In this case, McLANE waited seven months to serve the Complaint. The reason for this delay does not appear anywhere on the record, and counsel could not enlighten us as to a legitimate reason for the delay during the August 28, 2015 meeting. However, what is clear is that the Defendants were well aware of the May 10, 2012 accident and their potential responsibility for it. Moreover, the Defendants were also on notice by virtue of letters and emails that McLANE desired to include damage to its property as something for which the Defendants should be held responsible. From the above, it is beyond obvious that the Defendants had actual notice of the potential claim and causes of action that McLANE later confirmed via its Complaint. By virtue of this actual notice, we cannot perceive that Defendants suffered any prejudice as a result of the seven-month delay in serving the Writ of Summons.

If we were asked to summarize the evolution of Pennsylvania law that started with Lamp, we would do so by characterizing Pennsylvania’s approach as moving away from a formulaic model and toward one that focuses upon prejudice and fairness. Even under the model created by Lamp, we would probably have declared McLANE’s seven-month delay in serving the Writ of Summons to be fatal to its claim. However, we have read and re-read McCreesh, and we have reached the point where we have little doubt that under the fairness-focused template of McCreesh, the fact that the Defendants had actual notice of McLANE’s causes of action and therefore suffered no prejudice as the result of the seven-month delay requires us to permit the above-referenced matter to move forward. In the parlance of the legal proceeding before us, we refuse to declare McLANE’s May 9, 2014 Writ of Summons to be a “nullity.” Therefore, we cannot accept Defendants’ position that the statute of limitations expired. For this reason, the Defendants’ preliminary objections cannot be granted.

B. Negligent Entrustment and Vicarious Liability

In the related case of Mrazik v. Cummings, et al., we issued an Opinion on November 18, 2014, declaring that it would be pointless to permit simultaneous claims for vicarious liability and negligent hiring/supervision. Our Opinion in Mrazik is attached hereto as Exhibit A and incorporated by reference. At our meeting with counsel on August 28, all parties conceded that Brad Collins was working in the course and scope of his employment for Collins Trucking and that Collins Trucking would therefore be vicariously liable for any conduct of Brad Collins. The concession of this factual point triggers the legal analysis we reached in the Mrazik Opinion. For all of the reasons set forth in that Opinion, we will grant Defendant’s Preliminary Objections and will dismiss McLANE’s claims for negligent hiring, supervision and entrustment.

C. General Negligence

Broad and undefined allegations of negligence cannot withstand judicial scrutiny. In the seminal case of Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983), Pennsylvania’s highest court declared that general allegations that include “catch-all phrases” must be stricken from a Complaint. Since Connor, almost all Pennsylvania Trial Courts have sustained Preliminary Objections to broad general allegations of negligence. See also, Clarkson v. Geisinger Medical Center, 46 Pa.D&C 4^th 431 (2000).

In this case, paragraphs 29(c), 29(f) and 29(i) contained broad allegations of negligence, but do not specify the manner by which COLLINS was specifically alleged to have been negligent. Therefore, these paragraphs will be denied.

1) In addition, the Estate of Michael Horner initiated litigation in Federal Court on April 3, 2014. The Federal litigation was initiated against Joseph Cummings, Collins Trucking, Inc., Brad L. Collins, Daimler Trucks of North America and Freightliner, LLC. Like its Lebanon County counterparts, the Federal litigation alleged negligence and strict products liability.

2) In their initial Preliminary Objections, COLLINS challenged McLANE’s request to recover worker’s compensation benefits paid to Mrazik and Horner. That argument was not pursued at oral argument. Regardless, “an employer is subrogated to his employee’s rights against third parties for compensable work injuries.” Thompson v. W.C.A.B. (USF&C Co.), 781 A.2d 1146 (Pa. 2001). We intend to consolidate this case with the others filed as a result of the May 10, 2012 accident, which include claims for wrongful death and survivorship. We will not permit double recovery of workers compensation benefits.

3) Up to this point, we have not cited any cases from Pennsylvania’s intermediate appellate courts. This was not an accidental omission. As noted by the Supreme Court, pre-McCreesh decisions of the Superior and Commonwealth Courts were, to coin a colloquial phrase, “all over the place.” Little would be gained by an analysis of those cases.