HARRISBURG – A three-judge panel of the Superior Court of Pennsylvania has reinstated the case of a pair of plaintiffs who said they were burned by an electronic cigarette battery.
On May 12, Superior Court judges Jacqueline O. Shogan, Deborah A. Kunselman and John L. Musmanno remanded the case of Jason Svidunovich and Amanda Chaney to the trial court, the Dauphin County Court of Common Pleas.
Appellants Svidunovich and Chaney filed a personal injury lawsuit alleging a defective battery on an electronic cigarette and in this matter, they appealed from the June 28, 2019, order of the Dauphin County Court of Common Pleas. This order granted preliminary objections based upon defective service, which were filed by appellees LiteCigUSA Harrisburg and LiteSales USA.
Shogan stated the first issue that the appellants raised argued that the trial court erred in granting the appellees’ preliminary objections, on the basis that the complaint lacked verification and proper service.
“The trial court requested we reverse its order granting preliminary objections, reinstate appellants’ complaint, and remand for further proceedings because the basis for its order, defective service, had been waived by appellees,” Shogan said.
“The trial court asserts that when appellees filed their motion to join additional defendants on Feb. 11, 2019, and argued the merits of the case, they indicated an intent to forgo any objection to defective service. Thus, the trial court avers that it erred in granting preliminary objections.”
Shogan explained the appellees had sought to dismiss the appeal and filed an application to strike, asking that the court reinstate the complaint, as well.
In their motion, the appellees asserted that subsequent to the grant of preliminary objections, which were based upon lack of service “of any defendant,” but that “service of process had in fact been made upon one of the appellees, prior to counsel’s involvement in the case.” Therefore, the appellees also argued that the order granting preliminary objections lacked a proper basis.
“In light of the trial court’s admission that its order granting preliminary objections was in error, and appellees’ admission that its averment in their preliminary objections concerning lack of service was false, we conclude that the order granting preliminary objections cannot be sustained,” Shogan said.
“Therefore, the case must be remanded to the trial court and appellants’ complaint reinstated. Case remanded for proceedings consistent with this judgment order. Jurisdiction relinquished.”
Superior Court of Pennsylvania case 1249 MDA 2019
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com