Opinion
C.A. No. 03C-07-087 PLA.
Submitted: March 22, 2004.
Decided: April 2, 2004.
Upon Defendant's Motion For Reargument And To Vacate the Court's March 11, 2004 Order Addressing the Applicability of the Savings Statute DENIED.
Joseph M. Jachetti, Esquire, Kenneth R. Schuster Associates, P.C., Wilmington, Delaware, Attorney for Plaintiffs.
Arthur D. Kuhl, Esquire, Michael A. Pedicone, P.A., Wilmington, Delaware, Attorney for Defendant.
ORDER
FACTS
On July 11, 2001, Jerry and Monica Fort, husband and wife ("Plaintiffs"), both residents of the State of Delaware, and Angela M. Kosmerl ("Defendant"), a resident of the Commonwealth of Pennsylvania, were involved in an automobile traffic accident at the intersection of West 4th Street and N. Adams Street, Wilmington, Delaware. Exactly two years later to the day, on July 11, 2003, Plaintiffs filed a personal injury complaint against the Defendant.
Plaintiffs attempted service of process on the Defendant under the provisions of the Delaware non-resident motorist "long-arm" statute, 10 Del. C. § 3112. Pursuant to 10 Del. C. § 3112(b), on July 21, 2003, Plaintiffs caused the Prothonotary to order the Sheriff of Kent County to issue service of the summons and complaint on the Secretary of State of Delaware. On July 31, 2003, the Sheriff's Return of Service was filed with the Prothonotary of New Castle County. Pursuant to 10 Del. C. § 3112(b), Plaintiffs had seven days from the return of service date to send notice to the Defendant via registered mail, such notice containing certain mandated statutory language and a copy of the summons and complaint. Plaintiffs failed to send this registered notice to the Defendant within the prescribed statutory period.
On August 22, 2003, Defendant filed her answer, raising the affirmative defenses of insufficient process and insufficient service of process, lack of in personam jurisdiction, and expiration of the statute of limitations. In light of Plaintiffs' noncompliance with 10 Del. C. § 3112(b), on September 2, 2003, Defendant filed a motion to quash service and to dismiss Plaintiffs' complaint due to lack of in personam jurisdiction and expiration of the statute of limitations. Defendant argued that service of process, pursuant to 10 Del. C. § 3112(b), was not properly effectuated upon her as a non-resident of Delaware, contending that strict compliance with the requirements of 10 Del. C. § 3112(b) is necessitated under Delaware law to perfect service on a non-resident defendant in order to bring the defendant into the Court's jurisdiction. As service of process was not perfected, Defendant argued that this Court has no jurisdiction to consider Plaintiffs' cause of action. Since Plaintiffs failed to send the required registered letter within the seven-day period, the statute of limitations on the personal injury civil action was not tolled.
Plaintiffs alleged that the lawsuit was timely filed and that service of process was, nonetheless, properly effectuated on the Defendant, despite their failure to comply with the seven-day notice requirement of 10 Del. C. § 3112(b). Taking into consideration Superior Court Civil Rule 4(j)'s one-hundred-twenty-day time limit for service of a summons and complaint, Plaintiffs relied on the fact that Defendant receivedactual notice on July 19, 2003, eight days after the filing of the complaint, and well within the one hundred twenty days granted by Rule 4(j). Additionally, Plaintiffs filed a motion for enlargement of time, pursuant to Superior Court Civil Rule 6(b), and asserted that proper service was effectuated on the Defendant, pursuant to 10 Del. C. § 3112(b), by complying with the seven-day notice requirement on November 6, 2003.
On July 18, 2003, Plaintiffs sent a certified letter, with a copy of the complaint enclosed, to the Defendant at her residence in Pennsylvania. Defendant personally accepted service of the summons and complaint on July 19, 2003.
Plaintiffs contended that, since they re-served the Secretary of State on October 27, 2003, and served the Defendant properly on November 10, 2003, the Court retained in personam jurisdiction over the Defendant and, additionally, at that time, Plaintiffs were subject to an enlargement of time to serve the Defendant, at the Court's discretion.
By Order, dated March 11, 2004, this Court granted Defendant's motion to quash purported service and to dismiss. Reference is made to that opinion for a complete account of the chronological events, facts, and court proceedings leading up to the instant motion. The Court found that Plaintiffs failed to perfect service upon the Defendant under the Delaware non-resident motorist "long-arm" statute, that the Court lacked in personam jurisdiction, and that the claim was now barred by the expiration of the statute of limitations. In the remaining paragraphs of its Order, the Court addressed the applicability of 10 Del. C. § 8118, the "savings statute" as it related to Plaintiffs' cause of action. The Court determined that the savings statute was applicable, in that dismissal of Plaintiffs' cause of action without prejudice constituted an "abatement" of their action within the meaning of 10 Del. C. § 8118, should they desire to pursue the remedial relief afforded by § 8118.
Fort v. Kosmerl, 2004 WL 594939 (Del.Super.Ct.).
10 Del. C. § 8118 provides, in pertinent part:
(a) If in any action duly commenced within the time limited therefor in this chapter, the writ fails of a sufficient service or return by any unavoidable accident, or by any default or neglect of the officer to whom it is committed; or if the writ is abated, or the action otherwise avoided or defeated . . ., or for any matter of form; . . . a new action may be commenced, for the same cause of action, at any time within one year after the abatement or other determination of the original action, or after the reversal of the judgment therein. DEL. CODE ANN. tit. 10 Del. C. § 8118(a) (1999 2000 Supp.).
On March 18, 2004, the Defendant filed the instant Motion for Reargument and to Vacate the Court's March 11, 2004 Order Addressing the Applicability of the Savings Statute. Specifically, Defendant moves for reargument and requests that the Court, "[v]acate the art [sic] of the March 11, 2004 [O]rder ruling that Plaintiffs may avail themselves of the `savings statute[,]' 10 Del. C. § [sic] 8118, as that issue was not properly before the court." Further, Defendant contends that, "[P]laintiffs made no motion on that issue[,] and as the court ruled there is was [sic] no jurisdiction over the Plaintiff's['] cause of action[,] the court would not have jurisdiction to rule on the applicability of the savings statute[,] even if such a motion were filed." In essence, Defendant concludes her motion by asking the Court to vacate that portion of its March 11, 2004 Order dealing with the analysis of the potential applicability of 10 Del. C. § 8118 to Plaintiffs' cause of action.
DISCUSSION
In considering Defendant's motion for reargument, the Court must first address Defendant's claim that the issue of 10 Del. C. § 8118 was not properly before the Court, and therefore, the Court overstepped its jurisdictional boundaries in examining the relevancy of the savings statute. For several reasons, it is within this Court's plenary jurisdictional powers to review the issue of 10 Del. C. § 8118, enabling the Court to determine whether § 8118 was germane to Plaintiffs' civil suit. First, and foremost, because Plaintiffs initiated a personal injury civil action within the two-year statute of limitations provided for in 10 Del. C. § 8119, this Court possesses the general jurisdictional power to hear, review, and address any and all pretrial matters associated with the civil suit, including pleadings, motions, answers, replies, etc., as afforded to it by the Delaware Constitution, statutory law and the Superior Court Civil Rules.
See DEL. CONST. art. IV, § 7; DEL. CODE ANN. tit. 10, § 561 (1999 Supp. 2002); SUPER. CT. CIV. R. 7.
Second, Defendant's contention that the Plaintiffs made "no motion on this issue" is simply not accurate. Plaintiffs had raised this issue as one of several potential defenses in their answer to Defendant's motion to quash filed with the Court. In the closing paragraph of their answering brief, Plaintiffs asserted that, if the Court found that Plaintiffs had not effectuated proper service and/or if the Court, in effect, dismissed Plaintiffs' motion for enlargement of time, thereby nullifying their second service on Defendant, Plaintiffs could potentially invoke the equitable relief provided by the savings statute.
See Docket Nos. 18, 20.
Defendant aptly points out in this motion that no reply brief was permitted or ordered by the Court in which Defendant could have refuted the savings statute defense. Defendant is correct in her assertion, in that no reply brief is permitted to a dispositive motion by the moving party pursuant to the rules of Superior Court's Civil Case Management Plan. The Court reminds Defendant, however, that counsel had the opportunity to raise the issue of the applicability and propriety of the savings statute at the February 17, 2004 hearing, at which time the Court heard arguments from both parties regarding Defendant's motion to quash. Notwithstanding Defendant's inability to reply to Plaintiffs' assertion of the savings statute defense, it was still within this Court's jurisdictional powers to consider the issue in relation to Plaintiffs' overall claim.
Lastly, Defendant confounds this Court's March 11, 2004 ruling that the Court lacked in personam jurisdiction over Plaintiffs' cause of action, with the Court's innate jurisdictional right to review Plaintiffs' purported defense of utilization of the savings statute set forth in their answer. Simply put, Plaintiffs raised the defense in their answer, and the Court, in furtherance of its authority to review and consider pre-trial motions in an unyielding effort to expedite litigation and encourage disputes to be resolved, has the authority to consider and render an outcome dispositively on any issue raised before the Court as set forth in a dispositive motion. At the same time, the Court acknowledges that it did not rule on the issue of the savings statute in its March 11, 2004 Order, in as much as the purpose of the Court's discussion was directed to delving into the viability of Plaintiffs' proposed adoption of the savings stature. The Court does acknowledge that, to the extent its Order dismissed Plaintiffs' cause of action and ruled that this constituted an abatement of the action within the meaning of 10 Del. C. § 8118, this was the Court's only ruling with respect to the savings statute. As the Court will further elucidate, and as Defendant correctly asserts, this ruling was premature with respect to abatement of an action within the statute.
This is not to say that the Court ruled dispositively on the issue of the savings statute in its March 11, 2004 Order, other than to hold that the action had abated for purposes of the Plaintiffs filing another law suit. To the extent that the Court's Order addressed the applicability of the savings statute, some further clarification as to the Court's intent may be helpful to the parties. In discussing the relevant applicability of 10 Del. C. § 8118 in its Order, the Court was not rendering an opinion ruling in favor of Plaintiffs' adoption of the savings statute, nor was the Court granting Plaintiffs leave of court to pursue the remedial relief of the savings statute.
In its March 11, 2004 Order, this Court relied on Giles in support of its discussion of the inherent purpose and intended benefit of the savings statute. In Giles, the Delaware Supreme Court stated that, "[a] reading of the section [ 10 Del. C. § 8118] makes it plain that it confers upon litigants an absolute right to file a new action under certain conditions, and that one of those conditions is not leave of court." In discussing a party's absolute right to pursue an action under the savings statute, the Court was in no way granting a "green light" to the Plaintiffs to proceed with pursuing the equitable remedies endowed within the savings statute. This Court is well aware that Giles, and its progeny, do not permit the Court to exceed its authority by purporting to grant leave to a party to file a new action when rendering final judgment dismissing an action. To reiterate, the relevancy of the Court's discussion of this issue was in response to Plaintiffs' claim of the savings statute as a viable defense.
Giles v. Rodolico, 140 A.2d 263 (Del. 1958).
Giles, 140 A.2d at 266.
Gosnell v. Whetsel, 198 A.2d 924 (Del. 1964) (holding that the savings statute gives plaintiff an absolute right to bring the new action if within the terms of the statute); Vari v. Food Fair Stores, New Castle, Inc., 199 A.2d 116 (Del.Super.Ct. 1964), aff'd, 205 A.2d 529 (Del. 1964) (holding that litigants have a right to file a new action without leave of the court under this section, but this right is subject to its provisions).
In her motion for reargument, Defendant submits that the issue of the validity of a second lawsuit filed under 10 Del. C. § 8118 can only be decided in the event a second suit is filed. Defendant relies on this Court's prior holding in Dudlek, Ellis, and the Delaware Supreme Court's holding in Liles. In Dudlek, this Court granted the defendants' motion to dismiss due to insufficient service of process pursuant to Superior Court Civil Rule 4(j) "subject to appropriate action by plaintiffs under 10 Del. C. § 8118." Relying on Ellis, the defendants in Dudlek subsequently filed a motion for reargument/clarification contending that it was inappropriate for the Court to determine whether a second action may be validly filed under 10 Del. C. § 8118. In Ellis, the Court stated that, "[s]hould a second lawsuit be filed, the parties will undoubtedly debate whether Plaintiffs meet the conditions justifying application of the savings statute to the second lawsuit, but that is not a matter which the Court can address at this time." In response to the Dudlek defendants' concerns, and in light of Ellis, this Court in Dudlek stated that, "[t]he Court's comment was not a ruling concerning any future action on § 8118. The Court could only address the current situation on the validity of a second lawsuit if ever one is so filed by the [sic] Mr. and Mrs. Dudlek." In just the same manner, with the exception of the Court's statement that "Plaintiffs' cause of action constituted abatement, within the meaning of § 8118," that portion of the Court's March 11, 2004 opinion dealing with § 8118 was, equally, not a ruling concerning any future action on § 8118.
Dudlek v. Jackson, 2001 WL 946495 (Del.Super.Ct.).
Ellis v. Davis, 1997 WL 527941 (Del. Super Ct.).
Liles v. Cybak, 357 A.2d 739 (Del. 1976).
Dudlek, 2001 WL 946495, at *1.
Ellis, 1997 WL 527941, at *5.
Dudlek, 2001 WL 946495, at *1.
It is well settled that the holdings in both Ellis and Liles unquestionably confirm the fact that the savings statute saves a cause of action by permitting plaintiffs, under specified circumstances and conditions, to commence a second suit; it does not save the original suit. This does not belie the fact, however, that the Court may address and discuss the applicability of § 8118 to the original lawsuit when considering a motion to quash and/or dismiss in relation to the original lawsuit when it is properly before the Court. Moreover, besides § 8118 conferring on a litigant the absolute right to file a new action under certain conditions, a new action under § 8118 is considered as a continuation or renewal of the former action, and the second suit may be against the same party defendant.
See Ellis, 1997 WL 527941, at *4; Liles, 357 A.2d at 740 (emphasis added).
Vari v. Food Fair Stores, New Castle, Inc., 199 A.2d 116 (Del.Super.Ct. 1964), aff'd, 205 A.2d 529 (Del. 1964).
Id.
In conjunction with, and in observance of, the holdings in Dudlek, Ellis, and Liles, this Court's March 11, 2004 Order dealt only with the issues before it, and not with a potentially forthcoming second lawsuit. A closer examination of the phraseology found in the Order will bear witness to the Court's intent, and disarm any contention by the Defendant that this Court ruled improperly on the issue of addressing the applicability of § 8118. The Court began its discussion of the § 8118 issue by stipulating that, having found "the issue of present jurisdiction over the Defendant to be dispositive, it will address the issue of whether 10 Del. C. § 8118 applies to this particular case. . . ." After discussing the remedial purpose underlying the statute and the attached liberal construction invariably applied by the courts, the Court went on to state that, theoretically, the statute would be available to the Plaintiffs "should they seek to avail themselves of the beneficial considerations of this section." Again, despite the Court's premature evaluation that Plaintiffs' action had abated for purposes of the statute, it is the Court's opinion that an affirmation of this statement was in no manner to be interpreted by the parties as a ruling or leave of court, allowing Plaintiffs to proceed under § 8118 in an attempt to save the original lawsuit. The Court was merely opining on the viability of Plaintiffs' invocation of the savings statute defense based on the record, which indicated that failure to effectuate service of process was through no fault of the Plaintiffs, but rather through the inartful handling by Plaintiffs' counsel.
In addition, the case law cited by Defendant in support of her motion is distinguishable from the instant case. In Dudlek, Ellis, and Liles, the issue of § 8118 was not raised as a viable defense in a pretrial motion by the plaintiff in response to the defendant's motion to dismiss. Rather, in Dudlek, the issue arose subsequent to the Court granting defendants' motion to dismiss. In Ellis, the issue of § 8118 was introduced by the Court, when at oral arguments, it requested that the parties address whether it would apply to save the cause of action. In Liles, the issue of the applicability of the savings statute was addressed on appeal by the Delaware Supreme Court. The Court finds these distinctions significant in its conclusion that the matter of the potential applicability of § 8118 was properly before this Court, because examination of the issue was warranted, subsequent to the issue being presented to this Court, as a practical defense to dismissal of Plaintiffs' action.
Notwithstanding the foregoing conclusion that the issue of whether § 8118 was germane to Plaintiffs' cause of action and was properly before this Court for its consideration, that portion of the Court's Order which held that dismissal of Plaintiffs' action constituted an abatement of their action within the meaning of 10 Del. C. § 8118, was untimely. Upon a closer examination of the historical background, legislative intent, and purposeful rationale of the statute, it has become manifest to the Court that, for purposes of a determination of abatement of a cause of action, an action is abated within the meaning of 10 Del. C. § 8118 upon affirmance of a judgment of this Court.
In Giles, the Delaware Supreme Court held that the action had abated within the meaning of § 8118, even though the action was properly dismissed for failure to obtain jurisdiction, because the failure arose due to insufficient service of process to obtain jurisdiction, not through any fault of the plaintiff. This Court relied on the holding in Giles since the relevant circumstances so closely mirrored those of Plaintiffs' cause of action. Where Giles differed, taking the issue of § 8118 one step further, was in the fact that the Court simultaneously affirmed this Court's judgment as to that part which dismissed the plaintiff's action, and also held that the action abated within the meaning of § 8118. Yet, this Court's reliance on Giles in its determination that Plaintiffs' action had abated, for purposes of § 8118, was not altogether without merit. This Court's adoption of the Giles abatement standard was in unison with the Delaware Supreme Court's rationale in Giles which maintained that, although the question (the right of the plaintiff to institute a second action under § 8118, interposed as a defense to the new action, could be reviewed by the Court only after final judgment) was not technically before it, the Delaware Supreme Court nonetheless considered the issue of whether plaintiff could proceed via a new action under § 8118 "[s]ince it is obvious that much saving in the way of time, expense and effort might be made if we proceed to do so, we have concluded to express our views upon the plaintiff's right to do so." In much the same manner, and in pursuit of the same objective of fostering expeditious judicial determinations, this Court opined that Plaintiffs' action abated, without fully considering the requisite need, first, for an affirmance of the final judgment.
Giles v. Rodolico, 140 A.2d 263, 267 (Del. 1958).
Id.
Giles, 140 A.2d at 267.
Although the matter of abatement within the meaning of § 8118 was not for this Court to determine pursuant to the Giles standard, consideration of the procedure for attacking a complaint due to insufficient service of process is within the jurisdiction of this Court. In Gosnell, the Delaware Supreme Court observed that, "[i]t is evident that a defendant, objecting to insufficient service of process, may move to quash the writ or, alternatively, to dismiss the complaint. (citation omitted). Such an objection, presented in the form of a motion under Rule 12, is in the nature of a plea of abatement." Although such a plea may be initially presented to this Court for consideration in a pretrial motion, as in Plaintiffs' case, ultimately, as Giles and Gosnell instruct, the action does not abate, within the meaning of § 8118, until affirmance of the judgment of dismissal in the initial action.
Gosnell v. Whetsel, 198 A.2d 924, 926 (Del. 1964).
In furtherance of Giles, the Court in Gosnell embraced the fact that, "[t]he court, in ruling upon a motion to dismiss or to quash, predicated upon insufficient, [sic] service of process, may, if the evidence warrants, merely quash the writ or, alternatively, if the facts indicate that plaintiff will be unable to effect service of process in the foreseeable future, dismiss the action entirely." Based on these circumstances, the Court went on to note that, "[i]t is clear that the action abated, within the meaning of the statute, upon affirmance of the judgment of the lower court."
Id.
Id. at 927.
The Gosnell Court also indicated that, "[a] reading of the statute clearly indicates that abatement, in and of itself, is a separate and distinct ground for invoking the provisions of the statute. The language `for any matter of form' qualifies the phrase `or the action otherwise avoided or defeated' and does not qualify or limit the language referring to the abatement of the action." Thus, abatement is only one of the several available provisions, within the context of the savings statute, which a plaintiff may invoke. Citing to Giles in support of its findings, the Gosnell Court held that, upon affirmance of a judgment of dismissal in the original action, a cause of action abates, i.e., is effectively destroyed, and therefore, the statute becomes applicable.
Id.
Id.
In conclusion, the Court agrees that at this juncture, it is not within the Court's jurisdiction to rule on the viability of any potential future action by the parties with respect to invocation of 10 Del. C. § 8118, whether it be predicated on a claim for abatement, insufficient service due to neglect of an officer, or otherwise. Only upon the filing of a second law suit, based on the same cause of action, will this Court have the jurisdiction to consider the practicability of application of the ameliorative effect of the savings statute to Plaintiffs' cause of action.
For all the foregoing reasons, to the extent that the Court's Order, issued on March 11, 2004, addressed the applicability of 10 Del. C. § 8118 to Plaintiffs' cause of action, the Court's interpretations and observations were not a ruling concerning any future action on 10 Del. C. § 8118. To the extent that the Court's Order, issued on March 11, 2004, held that dismissal of Plaintiffs' cause of action constituted abatement, within the meaning of 10 Del. C. § 8118, that portion of the Order is hereby VACATED. Accordingly, Defendant's Motion To Quash Purported Service and to Dismiss Due to Lack of Personal Jurisdiction and to Dismiss Due to the Expiration of the Statute of Limitations is GRANTED. Defendant's Motion for Reargument and To Vacate the Court's March 11, 2004 Order Addressing the Applicability of the Savings Statute is DENIED.