Sayers, W. v. Heritage Valley Medical Group, Inc.

J-A20037-20

2021 PA Super 42

WILLIAM SCOTT SAYERS, : IN THE SUPERIOR COURT OF

INDIVIDUALLY, AND AS : PENNSYLVANIA

ADMINISTRATOR OF THE ESTATE OF :

PATRICIA ANN SAYERS :

:

Appellants :

:

:

v. : No. 405 WDA 2020

:

:

HERITAGE VALLEY MEDICAL GROUP, :

INC., ROBERT L. GRIECO, M.D., :

JESSICA LEIGH ANDERSON, PA.C., :

ADVANCED PAIN MEDICINE, P.C., :

MARK R. LODICO, M.D.; MATTHEW :

LODICO, M.D.; RICHARD PLOWEY, :

M.D.; KEVIN HIBBARD, M.D.; MED- :

FAST PHARMACY, INC.; MED-FAST :

PHARMACY, L.P.; GIANT EAGLE, INC. :

T/D/B/A GIANT EAGLE PHARMACY; :

WAL-MART STORES EAST, L.P. :

T/D/B/A WAL-MART PHARMACY AND :

WAL-MART STORES, INC. T/D/B/A :

WAL-MART PHARMACY :

:

Appeal from the Order Entered February 20, 2020

In the Court of Common Pleas of Beaver County Civil Division at No(s):

2017 - 10494

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

OPINION BY OLSON, J.: FILED: MARCH 15, 2021

Appellants, William Scott Sayers, individually and as administrator of

the estate of Patricia Ann Sayers, his wife, (collectively, “Appellants”) appeal

from the February 20, 2020 order sustaining the preliminary objections filed

by Heritage Valley Medical Group, Inc., Robert L. Grieco, M.D., and Jessica

J-A20037-20

Leigh Anderson, PA.C. (collectively, “Heritage Valley”),1 as well as the

amended preliminary objections filed by Advanced Pain Medicine, P.C., Mark

R. Lodico, M.D., Matthew Lodico, M.D., Richard Plowey, M.D., and Kevin

Hibbard, M.D. (collectively, “Advanced Pain Medicine”), Med-Fast Pharmacy,

Inc. and Med-Fast Pharmacy, L.P. (collectively, “Med-Fast Pharmacy”), Giant

Eagle, Inc. t/d/b/a Giant Eagle Pharmacy (collectively, “Giant Eagle”), and

Wal-Mart Stores East, L.P. t/d/b/a Wal-Mart Pharmacy and Wal-Mart Stores,

Inc. t/d/b/a Wal-Mart Pharmacy (collectively, “Wal-Mart”) (all defending

parties collectively referred to as “Appellees”), and dismissing Appellants’

complaint. The preliminary objections filed on behalf of Appellees alleged that

Appellants failed to toll the statute of limitations through the issuance of their

writ of summons. We affirm.

The record demonstrates that Patricia Ann Sayers (“Sayers”) died on

April 19, 2015, as a result of combined drug poisoning. Appellants initiated

causes of action for medical malpractice2 in connection with Sayers’ death

against Appellees by filing a praecipe for writ of summons on April 18, 2017.

No attempt at service of the writ appears in the record. On August 10, 2017,

____________________________________________

1 Heritage Valley did not file amended preliminary objections.

2 The applicable statute of limitations for “[a]n action to recover damages for

injuries to the person or for the death of an individual caused by the wrongful

act or neglect or unlawful violence or negligence of another” is two years. 42

Pa.C.S.A. § 5524(2).

-2-

J-A20037-20

Appellants filed a praecipe to reissue the writ of summons. No attempt at

service of the reissued writ appears in the record. On March 18, 2019, current

counsel entered his appearance on behalf of Appellants, and Appellants

subsequently filed a praecipe to reissue the writ of summons on April 3, 2019.

Appellants served the reissued writ of summons on each defending party at

various times in April 2019.3

On May 20, 2019, Appellants filed a complaint against Appellees for

medical malpractice. Appellees each raised, inter alia, a statute of limitations

defense by way of preliminary objections.4 Appellants then filed preliminary

____________________________________________

3 Wal-Mart Stores East, L.P. and Wal-Mart Stores, Inc. were each served by

certified mail on April 9, 2019, pursuant to Pa.R.Civ.P. 403 and 404 (pertaining

to the procedure for service outside the Commonwealth). Dr. Anderson was

served pursuant to Rules 403 and 404 by certified mail on April 10, 2019.

Heritage Valley Medical Group, Inc. and Dr. Grieco were served on April 24,

2019, by the Beaver County Sheriff’s Department. Giant Eagle was served on

April 24, 2019, by the deputized Allegheny County Sheriff’s Department.

Advanced Pain Medicine, P.C., Dr. Mark Lodico, Dr. Matthew Lodico, Dr.

Plowey, and Dr. Hibbard were each served on April 25, 2019, by the deputized

Allegheny County Sheriff’s Department. Med-Fast Pharmacy, Inc. and

Med-Fast Pharmacy, L.P. were served on April 29, 2019, by the Beaver County

Sheriff’s Department.

4 Heritage Valley filed preliminary objections on June 24, 2019. Advanced

Pain Medicine filed preliminary objections on June 26, 2019, and revised

preliminary objections on September 11, 2019. Med-Fast Pharmacy filed

preliminary objections on June 24, 2019, and revised preliminary objections

on September 18, 2019. Giant Eagle filed preliminary objections on July 1,

2019, and revised preliminary objections on September 13, 2019. Wal-Mart

filed preliminary objections on June 24, 2019, and revised preliminary

objections on September 19, 2019.

-3-

J-A20037-20

objections to Appellees’ preliminary objections.5 The trial court entertained

argument on the parties’ respective positions on January 28, 2020. At

argument, Appellees asserted that the writ of summons issued by Appellants

did not toll the applicable statute of limitations. N.T., 1/28/20, at 7-13.

Appellants did not dispute the substantive merit of this assertion but merely

responded that the statute of limitations defense must be raised in new matter

and, therefore, it did not constitute grounds to dismiss Appellants’ complaint.

Id. at 14-18. Finding that the pleadings and record clearly established that

the writ of summons issued by Appellants failed to toll the statute of

limitations, the trial court addressed the statute of limitations defense in the

interest of judicial economy and dismissed Appellants’ complaint. Trial Court

Opinion, 2/20/20, at 10-11. This appeal followed.

Appellants raise the following issues for our review:

[1.] Whether the trial court abused its discretion and/or erred as

a matter of law in granting Appellees' preliminary objections

on statute of limitation grounds where that affirmative

defense must be plead[ed] in [] new matter and not in

preliminary objections?

[2.] Whether the trial court abused its discretion and/or erred as

a matter of law in dismissing all [Appellees] on partial

grounds of lack of [personal] jurisdiction where not all

[Appellees] raised this defense in their responsive pleading

and[,] therefore[,] waived it?

____________________________________________

5 Appellants filed preliminary objections to Appellees’ preliminary objections

on July 12, 2019, and amended preliminary objections to Appellees’

preliminary objections on July 29, 2019, and September 20, 2019.

-4-

J-A20037-20

Appellants’ Brief at 7.

Appellants’ first issue challenges the trial court’s order sustaining

Appellees’ preliminary objections and dismissing Appellants’ complaint on the

grounds that Appellants’ writ of summons failed to toll the applicable statute

of limitations. Id. at 12-15. Appellants contend that all affirmative defenses,

including a statute of limitations defense, must be raised in new matter and

that Appellees incorrectly raised a statute of limitations defense in their

preliminary objections. Id. Appellants assert that the trial court erred by

overlooking “Appellees’ failure to raise their statute of limitations defenses in

[] new matter" and “reached an improperly plead[ed] issue on the merits” in

reliance upon judicial economy. Id.

Whether a trial court may address the merits of a statute of limitations

defense, when improperly raised in preliminary objections as opposed to new

matter, requires this Court to interpret the Rules of Civil Procedure. Thus, our

standard of review is de novo and our scope of review is plenary. See

Neducsin v. Caplan, 121 A.3d 498, 507 (Pa. Super. 2015), appeal denied,

131 A.3d 492 (Pa. 2016). “The object of all interpretation and construction of

[the Rules of Civil Procedure] is to ascertain and effectuate the intention of

[our] Supreme Court.” Pa.R.Civ.P. 127(a). In so doing, the Rules are to be

“liberally construed to secure the just, speedy[,] and inexpensive

determination of every action or proceeding to which they are applicable.”

Pa.R.Civ.P. 126.

-5-

J-A20037-20

Generally, a statute of limitations defense is properly raised in new

matter and not in preliminary objections. See Pa.R.Civ.P. 1030(a) (stating,

“all affirmative defenses including but not limited to the defenses

of . . . statute of limitations . . . shall be pleaded in a responsive pleading

under the heading ‘New Matter’”). This Court in Cooper v. Downington Sch.

Dist., however, held that,

[a]lthough the issue of the expiration of the statute of limitations

is properly raised under new matter, rather than by preliminary

objection, we will reach the merits at this time, in the interests of

judicial economy, for two reasons. First, it was briefed, argued,

and considered in the [trial] court. Secondly, once the statute of

limitations is raised in new matter, [the defendant’s] right to a

judgment on the pleadings, based on the statute of limitations,

will be clear. Therefore, we see no reason to remand this case for

further pleadings.

Cooper v. Downington Sch. Dist., 357 A.2d 619, 621 (Pa. Super. 1976)

(citations and footnotes omitted). This Court rejected the application of

Cooper in Duffee v. Judson, a case involving a statute of frauds defense,

stating that our Supreme Court’s holding in Brown v. Hahn, 213 A.2d 342

(Pa. 1965) was the “better rule” for considering the propriety of raising a

statute of frauds defense in preliminary objections. Duffee v. Judson, 380

A.2d 843, 845 (Pa. Super. 1977). In Brown, our Supreme Court held,

if the particular statute of frauds operates to bar or destroy the

plaintiff's right of action, irrespective of the action of the

defendant, such statute may be raised by preliminary objections

[pursuant to] Rule 1017(b)[. I]f the particular statute of frauds

merely gives the defendant a waivable defense, [however,] the

plaintiff will have stated a cause of action to which the defendant

may, if he chooses, defend on the ground of the statute [of frauds]

-6-

J-A20037-20

and, under such circumstances, the statute [of frauds] must be

asserted under ‘New Matter’ [pursuant to] Rule 1030.

Brown, 213 A.2d at 344 (extraneous capitalization omitted).

Unlike Appellants, who read Duffee as forbidding a flexible and efficient

application of our Rules of Civil Procedure, we find Duffee distinguishable

from the case sub judice. In Duffee, the plaintiff failed to admit or plead on

the record the relevant facts that demonstrated the defendant’s right to

prevail under the statute of frauds. Duffee, 380 A.2d at 845 n.2. In other

words, it was not clear from the record in Duffee that if the statute of frauds

defense were raised as new matter, and not by means of preliminary

objections, the defendant had the right to obtain a judgment on the pleadings.

Moreover, it is important to note that our Supreme Court, in Brown (the legal

precedent underpinning Duffee), addressed the merits of the statute of frauds

defense, despite the Court’s conclusion that the defense was raised improperly

by way of preliminary objections. The Court, in Brown, stated,

[e]ven though [defendant] erred procedurally, . . . we should

decide this appeal on its merits as though the issue of the statute

of frauds had been properly raised under Rule 1030. All the

relevant documents have been stipulated by the parties and made

part of the record, the question of the statute of frauds was

presented to and determined by the court below and both parties

have briefed and argued the question before this Court. Nothing

is to be gained by sending the parties back to the trial court to set

their procedural house in order before coming once again to this

Court with the identical controversy.

Brown, 213 A.2d at 346. In other words, the “best rule” as articulated by

the Brown Court was the exception set forth in Cooper that permits a trial

-7-

J-A20037-20

court to address an affirmative defense on the merits when it has been briefed,

argued, and considered by the trial court, and it is apparent from the record

that, if the affirmative defense were properly raised in new matter, the

defending party would have a right to judgment on the pleadings.

We find further support for the Cooper exception in Pelagatti v.

Cohen, where this Court reiterated its endorsement of the Cooper exception

permitting merits review in certain instances and held that, “while [an]

affirmative defense [] is generally to be [pleaded] in new matter, an

affirmative defense may be raised by way of preliminary objections where it

is established on the face of the complaint, or where the plaintiff fails to

object to the procedural irregularity.”6 Pelagatti v. Cohen, 536 A.2d 1337,

1346 (Pa. Super. 1987) (emphasis added), appeal denied, 548 A.2d 256 (Pa.

1988).

Having found the principle set forth in Cooper to be a logical and

efficient, albeit limited, exception to the requirement that a statute of

limitations defense must be raised in new matter and not via preliminary

objections, we turn now to the case sub judice. Upon review, we discern no

error in the trial court’s consideration of the merits of Appellees’ statute of

limitations defense because (1) all parties briefed and argued the merits of

____________________________________________

6 It is axiomatic that if the procedural error can be overlooked in the instance

when the plaintiff does not object to the irregularity, the procedural error can

be overlooked when the issue has been briefed, argued, and considered by

the trial court and the outcome is apparent on the face of the record.

-8-

J-A20037-20

the statute of limitations defense, and the trial court considered the same,

and (2) the record demonstrates that if the statute of limitations defense were

raised in new matter, Appellees’ right to judgment on the pleadings is clear,

as discussed more fully, infra. Thus, although Appellees improperly raised

their statute of limitations defense by way of preliminary objections and not

via new matter, we shall consider Appellants’ substantive challenge to the

order sustaining Appellees’ preliminary objections on grounds that Appellants’

writ of summons did not toll the applicable statute of limitations.

In reviewing an order disposing of preliminary objections, our standard

of review is well-settled. This Court reviews an order sustaining, or overruling,

preliminary objections for an error of law and in so doing, must apply the same

standard as the trial court. Haun v. Community Health Sys., Inc., 14 A.3d

120, 123 (Pa. Super. 2011) (citation omitted).

Preliminary objections in the nature of a demurrer test the legal

sufficiency of the complaint. When considering preliminary

objections, all material facts set forth in the challenged pleadings

are admitted as true, as well as all inferences reasonably

deducible therefrom. Preliminary objections which seek the

dismissal of a cause of action should be sustained only in cases in

which it is clear and free from doubt that the pleader will be unable

to prove facts legally sufficient to establish the right to relief. If

any doubt exists as to whether a demurrer should be sustained, it

should be resolved in favor of overruling the preliminary

objections.

Id. (citation and quotation marks omitted).

Pennsylvania Rule of Civil Procedure 1007 states that an action may be

commenced by filing a praecipe for writ of summons or a complaint with the

-9-

J-A20037-20

prothonotary. See Pa.R.Civ.P. 1007. In Lamp v. Heyman, 366 A.2d 882,

(Pa. 1976), our Supreme Court held, “a writ of summons [remains] 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[, or she,]

has just set into motion.” Lamp, 366 A.2d at 889. The Lamp Court explained

that the purpose of Rule 1007 was, “to provide certainty as to the

commencement of an action and to remove a subsequent failure to effect

service from consideration in determining whether the statute of limitations

has been tolled.” Id. at 886. In order to toll the statute of limitations upon

the filing of a praecipe for writ of summons, the plaintiff must make “a

good-faith effort to effectuate notice of commencement of the action” in order

that the plaintiff does not “retain exclusive control over [an action] for a period

in excess of that permitted by the statute of limitations.” Farinacci v. Beaver

County Indus. Dev. Auth., 511 A.2d 757, 759-760 (Pa. 1986) (citation

omitted) (holding, that good-faith efforts to effectuate service of the writ are

not excused by “counsel’s faulty memory” to serve the writ).

Our Supreme Court explained that the purpose of its holding in Lamp

was,

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. This process, while technically compliant with

the Rules of Civil Procedure, nonetheless defeated the purpose of

the statute of limitations, which is to protect defendants from stale

claims.

- 10 -

J-A20037-20

McCreesh v. City of Philadelphia, 888 A.2d 664, 665, 671 (Pa. 2005)

(stating, “the defendant must be provided notice of the action in order for the

purpose of the statutes of limitation to be fulfilled”).

Here, in support of its decision to sustain Appellees’ preliminary

objections and dismiss Appellants’ complaint based, inter alia, upon the

statute of limitations defense, the trial court reasoned,

The record in this case clearly establishes that [Appellants’

original] counsel simply filed a praecipe for writ of summons, and

a writ of summons was issued. Nothing was done with the writ of

summons for over 23 months. No steps were even taken to get

it to the sheriff of Beaver County for service. [The trial court]

provided ample opportunity for discovery before addressing this

issue and that discovery establishes that [Appellants’] original []

counsel has no evidence or information that the writ was ever

delivered to the sheriff for service. The deposition transcripts of

original counsel contained in the joint evidence of [Appellees]

further reflect that [Appellants’ current] counsel was actually

tangentially involved in the process during the time period in

question. Thus, [the trial] court has no alternative but to [sustain]

the preliminary objections and dismiss the action[.]

Trial Court Opinion, 2/20/20, at 10 (extraneous capitalization and footnote 7

omitted).7

____________________________________________

7 The facts referred to by the trial court (and in this decision, infra,) were

generated through discovery conducted at the direction of the trial court

pursuant to Pennsylvania Rule of Civil Procedure 1028(c)(2), permitting

limited discovery in the context of preliminary objections when the defending

party raises, inter alia, an issue of improper service of a writ of summons.

See Trial Court Opinion, 2/20/20, at 3, 5 n.5 (stating, “[t]he discovery

responses [made] it extremely clear that the [writ of summons] was not even

provided to the [s]heriff of Beaver County for purposes of service”).

- 11 -

J-A20037-20

The record demonstrates that Appellants’ original counsel recalled

sending the praecipe for writ of summons to the Beaver County prothonotary

on April 18, 2017, and including the addresses for all defending parties.8

Original counsel Deposition, 12/3/19, at 15. Original counsel was unable,

however, to locate any evidence demonstrating that he instructed the Beaver

County Sheriff to serve the writ. Id. at 18. Upon the reissuance of the writ

in August 2017, he had no recollection of any correspondence forwarding the

writ to the sheriff for service or any evidence showing that the writ had been

served. Id. at 22-29.

The docket demonstrates that the writ of summons was originally issued

on April 18, 2017, reissued on August 10, 2017, and reissued a second time

on April 3, 2019. Between April 18, 2017, when the writ was originally issued,

and April 17, 2019, when the first proofs of service of the writ were filed,9

there is no evidence demonstrating proper service or good-faith efforts to

serve the writ on Appellees.10

____________________________________________

8 Original counsel’s letter to the prothonotary, which accompanied the

praecipe for writ of summons, stated, “Thank you for your consideration in

accepting for filing, the praecipe for writ of summons in the above captioned

matter. As requested, below you will find a list of [Appellees’] addresses.”

See Original counsel Deposition, 12/3/19, at Exhibit 3.

9 On April 17, 2019, proofs of service were filed demonstrating that the writ

had been served on Wal-Mart and Dr. Anderson.

10 The first entry of appearance by a defending party on the record was filed

by counsel for Giant Eagle on April 29, 2019, more than two years after the

initial issuance of the writ.

- 12 -

J-A20037-20

Based upon the record before us, we concur with the trial court’s

conclusion that the record contains “no evidence or information that the writ

was ever delivered to the [s]heriff for service.” Trial Court Opinion, 2/20/20,

at 10. Moreover, original counsel’s explanation of events or, more specifically,

his failure to detail any facts relating to service of process between the initial

issuance of the writ on April 18, 2017, and the final reissuance of the writ on

April 3, 2019, fails to demonstrate a good-faith effort on the part of Appellants

to serve the writ on Appellees. Therefore, Appellants failed to toll the statute

of limitations upon the filing of a praecipe for writ of summons on April 18,

2017. Consequently, the record clearly demonstrates that the statute of

limitations bars Appellants from bringing their present action for medical

negligence, and Appellees were entitled to an order sustaining their

preliminary objections and dismissing Appellants’ complaint.11 There is

____________________________________________

11 As to Appellants’ second issue, a review of the record demonstrates that

only Giant Eagle and Med-Fast Pharmacy raised the issue of personal

jurisdiction in their amended preliminary objections. Giant Eagle and

Med-Fast Pharmacy were served with the reissued writ of summons on April

24, 2019, and April 29, 2019, respectively. Therefore, the trial court obtained

personal jurisdiction over these two defending parties upon the service of the

writ. See McCreesh, 888 A.2d at 666 n.1 (holding, that jurisdiction attaches

upon proper service of process). Therefore, the trial court erred in sustaining

Giant Eagle’s and Med-Fast Pharmacy’s amended preliminary objections on

the grounds that the trial court lacked personal jurisdiction.

The issue of personal jurisdiction was waived by Heritage Valley, Advanced

Pain Medicine, and Wal-Mart because these three defending parties failed to

raise the issue in their respective preliminary objections and amended

preliminary objections. See Pa.R.Civ.P. 1032 (stating, that with few

exceptions, none of which apply in the instant case, a “party waives all

- 13 -

J-A20037-20

nothing to be gained by remanding this case back to the trial court so

Appellees can set their procedural houses in order.12

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/2021

____________________________________________

defenses and objections which are not presented either by preliminary

objection, answer or reply”). Therefore, the trial court obtained personal

jurisdiction of these three defending parties upon the filing of their preliminary

objections. See Encelewski v. Associated-East Mortgage Co., 396 A.2d

717, 719 (Pa. Super. 1978) (holding, that a trial court is vested with personal

jurisdiction upon the filing of preliminary objections in which a party fails to

raise the issue of lack of personal jurisdiction). Consequently, the trial court

erred in sustaining Heritage Valley’s preliminary objections and the amended

preliminary objections filed by Advanced Pain Medicine and Wal-Mart on the

grounds that the trial court lacked personal jurisdiction.

Notwithstanding the trial court’s error in sustaining the preliminary

objections filed by Giant Eagle, Med-Fast Pharmacy, Heritage Valley,

Advanced Pain Medicine and Wal-Mart on the basis of lack of personal

jurisdiction, Appellants’ complaint filed against these Appellees was still

properly dismissed on the basis of the statute of limitations.

12Notwithstanding the result reached in the Opinion, this Court does not

condone or excuse counsels’ failure to follow the Rules of Civil Procedure.

- 14 -