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07/02/97 LISA JOHNSON & MARK JOHNSON AND NORMA

July 2, 1997

LISA JOHNSON & MARK JOHNSON AND NORMA ARCHER & WILLARD ARCHER, APPELLANTS
v.
JAMES B. STUENZI, A/K/A JAMES STUENZ



Appeal from the Order of the Court of Common Pleas, Erie County, Civil Division, at No. 10861-1995. Before CUNNINGHAM, J.

Before: Ford Elliott, Schiller and Brosky, JJ. Opinion BY Brosky, J. Schiller, J. Concurs in the Result. Ford Elliott, J. files a Concurring Statement.

The opinion of the court was delivered by: Brosky

OPINION BY BROSKY, J.

Filed July 2, 1997

This is an appeal from an order granting appellee's motion for summary judgment on the basis of the statute of limitations. Appellants raise two general issues, whether the court erred in finding as a matter of law that appellants' cause of action was barred by the statute of limitations; and, did the court err in concluding that there were no issues of material fact to be decided at trial. We vacate and remand.

Appellants allege they sustained injuries when a vehicle driven by the appellee collided with the rear of a vehicle occupied by appellants on Route 6 in Erie County on February 2, 1991. Appellee was driving a truck owned by his father, Ben Stuenzi, and registered in the state of Illinois. At the time of the accident appellee resided at a Christian camp called Miracle Mountain Ranch in Spring Creek, Pennsylvania, where he worked as a counselor or youth minister. Appellee left the Miracle Mountain Ranch in September of 1991 but remained within the Commonwealth until approximately January 10, 1992. Appellee moved about for the next three years in his capacity as a Christian camp counselor/minister working at a variety of camps across the country. In all, appellee changed his residence six times from the time of the accident and has not resided in the Commonwealth since January of 1992.

Appellants received a notice of accident report from the Pennsylvania State Police which listed appellee's address as a post office box in Spring Creek, as well as an address for appellee's father at a street number in Woodstock, New York. Somewhat inconsistently, however, appellee's license number was indicated as an Illinois number, as was the vehicle's registration number. Further, the zip code indicated for the Woodstock address did not correspond to Woodstock, New York, but did correspond to the zip code for Woodstock, Illinois. The official accident report, which was received later, indicated that the owner of the vehicle was Ben Stuenzi at a Woodstock, Illinois address, and provided a telephone number. The report also listed an address and telephone number for appellant.

On or about March 12, 1992, appellants, Lisa and Mark Johnson, who lived in Chautauqua County, New York, and appellants Norma and Willard Archer, who lived in Warren County, Pennsylvania, retained counsel from Jamestown, New York, to file a suit for injuries resulting from the accident. Having reviewed the notice of accident report and seeing that the owner of the vehicle had a Woodstock, New York, address counsel believed that, in addition to an action against appellee in Pennsylvania, there would be a New York cause of action against Ben Stuenzi. In an effort to file suit prior to Pennsylvania's two year statute running counsel, through his secretary and paralegals, made several phone calls to the number for appellee provided in the accident report without even getting someone to answer the phone. When an answer was finally received they were informed that they had reached a dormitory at the Miracle Mountain camp and that although they recognized appellee's name, he had left quite some time ago. No other information about appellee was provided appellants. Appellants' counsel, or his staff, also made some calls to the number listed for Ben Stuenzi but also received no answer. Additionally, they checked the phone directory for Spring Creek and attempted to contact an Alliance Church in an effort to track down appellee. None of these efforts resulted in a current address for appellee. Consequently, as of February 2, 1993, no suit had been filed.

After the two year period expired appellants' counsel, still under the impression the owner of the vehicle was a New York resident, began concentrating on filing an action in New York prior to the three year limitations period expiring. Counsel again called the number for appellee in Spring Creek and reached someone in the dormitory who gave them the number for the camp office. Upon reaching the camp office they were told that appellee had worked there at one time but had moved to one or more places since. They further commented that they believed appellee may be back home in Illinois. At this time counsel realized that appellee's father lived in Woodstock, Illinois and not Woodstock, New York. Counsel contacted the sheriff's office of the county in which Woodstock, Illinois was located and forwarded a complaint filed in New York state naming both appellee and his father as defendants. Although appellee's father had moved from the address given to the sheriff, he was able to locate the new address. When the sheriff arrived at appellee's father's residence the father was not there but appellee was. Counsel received the return of service in early April of 1994, which indicated appellee had been served at the Woodstock, Illinois location. Upon preliminary objection it was later determined that a New York action could not be maintained for lack of personal jurisdiction over appellee in New York. Consequently, appellee was finally served with the complaint in question, which was filed on March 2, 1995, by certified mail in early March, 1995.

After discovery was closed appellee filed a motion for summary judgment based upon the statute of limitations. Briefs were received and an argument was scheduled at which appellants' New York counsel, in unsworn testimony, detailed some of the efforts that were made to locate appellee. The court considered the affidavits and testimony of appellants' counsel and then granted appellee's motion. The present appeal followed.

The statute of limitations question revolves around the provisions regarding absentee defendants. 42 Pa.C.S.A. § 5532(a), in relevant part, provides: "if, after a cause of action has accrued against a person, he departs from this Commonwealth and remains continuously absent therefrom for four months or more,... the time of his absence... is not part of the time within which the action or proceeding must be commenced." Pursuant to this provision, if an alleged tortfeasor leaves the Commonwealth after the commission of the tort the period spent outside the Commonwealth is excluded from the limitations period. However, under subsection (b)(3), the time is not excluded "while jurisdiction over the person of the defendant can be obtained without personal delivery of process to him within this Commonwealth." Since, under the Pennsylvania Long-Arm Statute, jurisdiction over a non-resident defendant can be obtained through service by certified mail it is contended that any period of time which a plaintiff knows of, or should have known of, the non-resident defendant's mailing address should not be excluded from the limitations period. In light of the above provision it seems clear that the time during which appellants actually knew of appellee's whereabouts cannot be excluded, since service of process could have been easily effected. However, dealing with the interim period is more difficult and further complicated by the virtual nonexistence of case law dealing with this particular issue.

Generally speaking, a litigant has an obligation to serve a defendant within the statutorily prescribed period. Further, it is entirely foreseeable that potential defendants may move after a cause of action accrues but before a plaintiff endeavors to serve them. Thus, it is reasonable to impose a duty upon a litigant to locate and serve a defendant within the period of limitations. However, it is just as foreseeable that there will be times when a defendant will be very difficult to locate after a cause of action has accrued due to the defendant's moving from the Commonwealth and there being a lack of available information for finding his present location. Although it is reasonable to impose a duty upon a plaintiff to diligently attempt to locate a defendant, it would be unfair to punish a plaintiff who has failed to locate a defendant despite the exercise of due diligence by extinguishing his right to sue. Commonsense and general fairness suggests that the period of time that a defendant is outside the Commonwealth and has escaped location, or is not locatable, despite the exercise of due diligence should be excluded from the limitations period. This is essentially the Conclusion reached by the Federal District Court for the Eastern District of Pennsylvania in Bywaters v. Bywaters, 721 F. Supp. 84 (E.D.Pa. 1989), which also is the only decision found which attempts to deal with this particular problem.

In Bywaters the court considered a case where a daughter sued her father for assault, battery, invasion of privacy and breach of parental care based upon her father's continuous sexual abuse of her as a minor. The plaintiff did not file suit against her father until six years and forty-eight days after the father had left the family residence, which represented the last possible date which the abuse could have occurred. Because the statute of limitations was at issue the court fashioned two interrogatories to the jury regarding that issue. The interrogatories were designed to allow the court to determine the limitations issue post-trial if necessary. The first inquiry asked the jury to find by a preponderance of the evidence whether the plaintiff knew her father's address after he had left the family residence and moved to New Jersey. The second asked the jury to find by a preponderance of the evidence whether, upon the exercise of reasonably diligent inquiry, the plaintiff should have known of her father's address. The jury returned a response of yes to both questions while returning a verdict for the plaintiff. The defendant filed a motion for judgment notwithstanding the verdict (JNOV).

The court considered the statutory tolling provisions and the premise that the statute of limitations is an affirmative defense in trying to develop a workable rule applying the tolling provision. The court then held that when the statute of limitations is raised and the plaintiff contends that the defendant has been outside the jurisdiction the plaintiff bears the burden of demonstrating by a preponderance of the evidence that the defendant has been absent within the meaning of 42 Pa.C.S.A. ยง 5532(a). The burden then shifts to the defendant to show that the plaintiff could have located the defendant's whereabouts through reasonable diligence and served him there by certified mail. The court then concluded that it had failed to ask the jury a pivotal question, that being at what point should the plaintiff have discovered defendant's whereabouts. The court commented that the appropriate remedy would be to grant a new trial. However, the court did not ...


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