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Trexler v. McDonald's Corporation

Superior Court of Pennsylvania

June 3, 2015

ALEXANDRA AND DEVIN TREXLER, HUSBAND AND WIFE, Appellants
v.
MCDONALD'S CORPORATION, Appellee

Appeal from the Order of the Court of Common Pleas of Schuylkill County, Civil Division, No: S-596-2012. Entered May 2, 2014. Before GOODMAN, J.

Stephen T. Carpenito, Pottsville, for appellants. (submitted)

John F. Yaninek, Harrisburg, for appellee.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

OPINION

Page 409

STABILE, J.

Appellants, Alexandra and Devin Trexler, appeal from the May 2, 2014 order sustaining the preliminary objections of Appellee, McDonald's Corporation. We affirm.

The sole question before this Court is whether the trial court erred in finding that Appellants failed to serve process on Appellee. We will begin with a detailed review of the procedural history and pleadings. This litigation arose from Alexandra Trexler's February 11, 2011 slip and fall accident at a McDonald's restaurant located at the intersection of Route 61 and Tunnel Road in Pottsville, Pennsylvania (the " Pottsville McDonald's" ). Appellants filed a complaint on March 21, 2012 naming Appellee as a defendant and alleging Appellee was negligent in allowing a slippery condition to exist on the floor of the Pottsville McDonald's. Appellants served the complaint on the manager of the Pottsville McDonald's. On April 25, 2012, Appellee, through its counsel, filed preliminary objections alleging improper service. Appellants filed an amended complaint on

Page 410

May 16, 2012. On August 17, 2012, the trial court entered an order dismissing Appellee's preliminary objections as moot in light of the amended complaint.

On April 19, 2013, more than eleven months after the amended complaint was filed, Appellee once again filed preliminary objections. Appellee alleged its counsel never agreed to accept service of the amended complaint on behalf of Appellee. Preliminary Objections to Plaintiffs' Amended Complaint, 4/19/13, at ¶ 6. In support of that assertion, Appellee attached a series of emails between Appellee's counsel and Appellants' counsel.

The first email, sent from Appellants' counsel to Appellee's counsel on May 2, 2012, reads as follows:

I am in receipt of your P.O.'s related to service of process. While I disagree with your position I would like to avoid unnecessary motion practice and would ask you to accept service of the complaint for your client. There is plenty of time under the SOL so if necessary I can effectuate service assuming the Court rules in your favor. I think it would be better if we work together and get discovery going.

Id. at Exhibit B.

Appellee's counsel responded on May 11, 2012:

I am not authorized to accept service. Sorry.

Id.

On May 16, 2012, Appellants' counsel responded to Appellee's counsel:

Thank you for the response. I will advise my client and will extend the same courtesies to your client during this litigation.

Id.

Later the same day, Appellee's ...


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