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Case Law Alerts

Courts will not give the benefit of doubt, even in the face of a pandemic, to excuse lack of good faith effort to serve a complaint.

Bellan v. Penn Presbyterian Medical Center, 2022 WL 515805 – Feb. 22, 2022

April 1, 2022

by Gabor Ovari

The plaintiff alleged that the defendant’s nursing staff failed to adequately treat his pressure wounds. The plaintiff filed a complaint on September 23, 2020, and failed to serve the defendant within 30 days after filing the complaint. The plaintiff also failed to reinstate the complaint. 

The defendant filed preliminary objections based on improper service of process. In opposition to the preliminary objections, the plaintiff argued that he attempted to serve the complaint, but his process server was informed that there was no one available at the defendant’s offices to accept service due to the COVID-19 pandemic. Therefore, the plaintiff argued that service could not be completed due to the defendant’s failure to leave anyone in charge to accept service. The plaintiff contended that he was unable to find an agent of the defendant who would accept service of his complaint. The trial court was not receptive to this argument and dismissed the complaint.

On appeal, the Superior Court of Pennsylvania observed that the law requires that a plaintiff must 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 he met this requirement. If a plaintiff presents credible evidence that there was a good faith attempt at service, then the requirement is fulfilled. However, in contrast, if a plaintiff does not present such evidence, then he fails this evidentiary burden, regardless of whether his actions (or inaction) were intentional, unintentional or otherwise. 

In this case, the court concluded that the plaintiff failed to produce evidence to show he acted diligently in making a good-faith effort to serve the defendant with notice that he had filed his complaint. The court observed that lack of due diligence was apparent in this case and the attempt to blame the COVID-19 pandemic was not a sufficient excuse. 

This  case demonstrates that courts will not give the benefit of doubt, even in the face of a pandemic, to excuse a lack of good faith effort to serve a complaint. Defense counsel should be careful about evaluating what efforts a plaintiff has made to serve the complaint and, if appropriate, this argument should be raised via preliminary objections. Based on the facts outlined in this case, courts seem to require more than just a singular attempt to effectuate service. 
 

Case Law Alerts, 1st Quarter, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

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