Jon Campisi Mar. 19, 2014, 10:08am


A state appellate court panel has affirmed a trial judge’s decision to toss a

slip-and-fall lawsuit against the City of Philadelphia because the statute of limitations had expired at the time the plaintiff served the defendant with the complaint.

The three Commonwealth Court judges on March 12 sided with the defense, which had argued in the lower court that Stephany Daniel’s civil action should be dismissed because it was served on the defendant seven months after the statute of limitations would have expired, and eight months after the litigation was actually commenced.

Daniel maintained she was injured after slipping and falling on a Philadelphia street back on June 19, 2010.

She filed her lawsuit against the city on May 22, 2012, just shy of the expiration of the two-year statute of limitations.

The plaintiff, however, didn’t serve the defendant with the complaint until Feb. 1, 2013, records show.

Two weeks later, after entering its appearance, the city filed an answer and new matter asserting that the statute of limitations had expired.

But the city never filed preliminary objections, and Daniel ultimately argued that the issue of the suit being time-barred was waived since city lawyers didn’t raise the matter in the form of preliminary objections.

Last May, a Philadelphia Common Pleas Court judge granted the city’s motion for judgment on the pleadings and dismissed the plaintiff’s complaint.

On appeal to Commonwealth Court, Daniel argued that the trial judge erred in siding with the defense because the city was barred from asserting a statute of limitations defense of “defective/late” service by way of preliminary objections after it had already entered an appearance and filed an answer to the suit.

The appeals panel wrote that while Daniel validly commenced her civil action within the two-year limit, she failed to toll the statute of limitations because she didn’t attempt to serve the complaint on the city.

(The plaintiff hadn’t reinstated her complaint until Jan. 29, 2013, after the statute of limitations had expired).

Daniel had attempted to argue that a case titled Cinque v. Asare supported her position.

In that case, the defendants responded to a timely filed complaint, after which the parties engaged in a two-year discovery process.

The defense then argued that service of the complaint on only their attorneys amounted to defective service and because two years had passed since the incident, the statute of limitations had run out on the plaintiff’s claim.

The Pennsylvania Superior Court rejected the defendants’ arguments and ruled that the defendants had waived any “defective service” or statute of limitations arguments by answering the complaint and litigating the case.

In the present case, Daniels didn’t serve the city with her complaint until seven months after the original statute of limitations expired.

“Here, the City does not allege improper service,” the appeals ruling notes. “It alleges no service until after the statute of limitations had expired.”

The panel pointed out that as per procedural rules, the city was correct to raise its issue as an affirmative defense by filing a new matter and not a preliminary objection.

In the end, the Commonwealth Court judges ruled that the trial judge properly determined that Daniel did not make a good-faith effort to serve the complaint in a timely manner, the statute of limitations defense was properly raised in the city’s new matter, and the statute of limitations had run.

The decision was written by Senior Commonwealth Court Judge Rochelle S. Friedman.

The other participating judges were Bernard L. McGinley and Anne E. Covey.

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