Nicholas Malfitano Aug. 11, 2015, 10:11am


HARRISBURG – According to a decision filed June 3, the Superior Court of Pennsylvania affirmed a May 2, 2014 decision of the Schuylkill County Court of Common Pleas sustaining the defendant’s preliminary objections in a slip-and-fall negligence action.

Judges Kate Ford Elliott, Jacqueline O. Shogan and Victor P. Stabile ruled in this case, with Stabile writing the opinion upholding the decision in favor of McDonald’s Corporation’s Pottsville location against Ringtown residents Alexandra and Devin Trexler.

The Trexlers commenced this litigation in March 2012, in connection with a fall sustained by Alexandra Trexler in a Pottsville-area McDonald’s restaurant on Feb. 11, 2011. According to the Trexlers, McDonald’s was negligent in allowing a slippery substance on the restaurant floor to create a dangerous condition that caused Alexandra Trexler to fall and suffer injury.

The appellants served the complaint on the manager of the Pottsville McDonald’s, but on April 25, 2012, the restaurant and its counsel filed preliminary objections alleging improper service.

Though the appellants later filed an amended complaint on May 16, 2012, McDonald’s again filed preliminary objections on April 19, 2013, more than 11 months after the amended complaint was filed.

In those objections, counsel for McDonald’s stated it never agreed to accept service of the amended complaint on behalf of their client. In order to support that assertion, McDonald’s attached a series of e-mails between their counsel and the Trexlers’ counsel.

Both attorneys disagreed over the process of properly serving the complaint, which led to a series of objections and responses over the better part of the following two years.

Finally, on Jan. 6, 2014, the Schuylkill County Court of Common Pleas entered an order giving both parties 60 days to conduct discovery. However, neither party conducted any action during that time period.

On May 1, 2014, long after the expiration of the discovery period, the appellants filed a motion for an extension of the discovery period. In both that motion and the accompanying brief, the appellants offered no explanation why they needed more time or why they failed to meet the trial court’s original 60-day deadline.

The following day, the trial court entered the order on appeal without having received appellants’ motion for extension. Further, the trial court noted it did not receive the motion for enlargement of time until the appellants filed their May 22, 2014, appeal from the May 2, 2014 order. 

According to the Superior Court, it was its duty to determine whether the Schuykill County Court of Common Pleas had erred in its decision of finding the appellants failed to serve process upon McDonald’s, and whether service at a franchise location constitutes service of the parent corporation.

Stabile cited Rule 424 of Pennsylvania state law in explaining proper process of service to corporations and those in its authority needs to satisfy three criteria: “(1) an executive officer, partner or trustee of the corporation or similar entity, or (2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or (3) an agent authorized by the corporation or similar entity in writing to receive service of process for it.”

“Appellants however, failed to establish that they served a person at the Pottsville McDonald’s who qualified as one of those persons authorized [under Rule 424] to accept service on behalf of the appellee,” Stabile said. “It was not sufficient for the appellant to serve an employee of the Pottsville McDonald’s not employed or authorized to act on behalf of the appellee, an absent landlord and franchisor, to perfect service on the appellee [under Rule 424].”

Stabile also reiterated this point that the appellants, who had claimed the trial court erred on the supposed untimely filing of preliminary objections by McDonald’s, had not made proper service of the complaint to McDonald’s, and therefore, the corporation was not bound by the normal 20-day limit in which to file preliminary objections.

Further, the appellants claimed they were unfairly prejudiced with McDonald’s preliminary objections after the two-year statute of limitations expired. It was an argument Stabile and his fellow judges rejected.

“In summary, the record supports the trial court’s findings that appellants had sufficient information to effect proper service within the statute of limitations period,” Stabile said. “Some of that information came in the form of an affidavit from the franchise owner filed by appellee. For all of the foregoing reasons, we conclude the trial court did not err in sustaining appellee’s preliminary objections.”

The appellants were represented by Stephen T. Carpenito of the Law Offices of Stephen T. Carpenito, in Pottsville.

The appellee was represented by John F. Yaninek of Thomas Thomas & Hafer, in Harrisburg.

The Superior Court of Pennsylvania case 903 MDA 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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