Bolick v. Ne. Indus. Servs. Corp.
| Decision Date | 25 January 2023 |
| Docket Number | 1221 C.D. 2021 |
| Parties | Thomas M. Bolick and Eileen B. Bolick, Appellants v. Northeast Industrial Services Corporation, William R. Williams, Jeff Kurtz, Individually and d/b/a Jeff's Recycling, Mount Carmel Borough and Edward T. Cuff, III, Manager, Northumberland County and The News Item and Don E. Bower, Inc. |
| Court | Pennsylvania Commonwealth Court |
Thomas M. Bolick (Mr. Bolick) and Eileen B. Bolick (together, the Bolicks) appeal pro se from the October 20, 2021, Order of the Court of Common Pleas of Northumberland County (trial court), which granted the motions for judgment on the pleadings of The News Item (News Item) and Don E. Bower, Inc. (Bower) asserting defenses of the statute of limitations and failure to exhaust statutory remedies. Upon review, we affirm.
This matter returns to us after our previous opinion in Bolick v. Northeast Industrial Services (Pa. Cmwlth., No. 443 C.D. 2019, filed Aug. 18, 2021), 2021 WL 3642344 (unreported) (Bolick I), which resulted in the dismissal of several defendants on preliminary objections and a remand to the trial court for further proceedings as to News Item and Bower.
In March 2014, the Bolicks commenced a federal action in the United States District Court for the Middle District of Pennsylvania. See Bolick I, slip op. at 2-3, 2021 WL 3642344, at *1. The Bolicks alleged that Mount Carmel Borough (Borough) and Northumberland County (County), along with contractors Northeast Industrial Services Corporation and its owner William R. Williams (together, Northeast) and Jeff Kurtz, individually and d/b/a Jeff's Recycling (together, Kurtz), wrongfully appropriated and demolished the Bolicks' residential and personal property in March 2012 as part of a flood control project that took place on Shamokin Creek in the Borough and County. Id., slip op. at 2, 2021 WL 3642344, at *1. Further, the Bolicks alleged defamation by News Item in stories printed in March 2014 and March 2015 about Mr. Bolick's past and present lawsuits, which the Bolicks argued included numerous false statements, omissions, and distortions of facts that News Item published knowingly and in bad faith. Id., slip op. at 3, 2021 WL 3642344, at *1. The Bolicks did not sue Bower, a contractor on the flood control project, in the federal action.
The federal action concluded when the United States Court of Appeals for the Third Circuit issued a certified judgment in lieu of a formal mandate on December 28, 2016, which affirmed the district court's dismissal of the Bolicks' federal claims for failure to state a claim upon which relief could be granted and dismissed their state law claims without prejudice to allow them to refile those claims with the trial court. Bolick I, slip op. at 3-4, 2021 WL 3642344, at *2. Thereafter, the Bolicks filed a praecipe for writ of summons (Praecipe) in the trial court on January 27, 2017. Id., slip op. at 2, 2021 WL 3642344, at *1. On July 14, 2017, they filed their third and final amended complaint (Complaint), which named Bower as a defendant for the first time and claimed that Bower trespassed and negligently failed to ascertain the legality of its presence on the Bolicks' property. Id.; see also Complaint ¶¶ 16 & 121-28; Original Record (O.R.) #18.
The Bolicks' Praecipe was filed with the trial court within 30 days of December 28, 2016, the time required by 28 U.S.C. § 1367(d) for transfer of a legal matter from federal to state court. The federal transfer statute is implemented in Pennsylvania by Section 5103(b) of the Judicial Code.[1] 42 Pa.C.S. § 5103(b). Bolick I discusses the interaction and mechanism of these statutes at length. See Bolick I, slip op. at 9-15, 2021 WL 3642344, at *5-7. For purposes of this appeal, we need not revisit that discussion in its entirety. We reiterate, however, that in order to perfect a transfer, which suspends the statute of limitations to protect a state law action initially brought in but dismissed by a federal court, the Bolicks were required both to refile their state law claims with the trial court within 30 days, which they did, and to comply with Section 5103(b) by promptly filing certified copies of the federal pleadings and final judgment with the trial court, which they did not.[2] Id., slip op. at 15-16, 2021 WL 3642344, at *7-8. Certified copies of the federal action pleadings and judgment were neither attached to the Complaint nor separately filed with the trial court by the Bolicks at any time. Id. Therefore, the statute of limitations never tolled on any of the Bolicks' state law causes of action that were part of the Bolicks' federal lawsuit.
In light of that defect in the transfer attempt, we sustained the trial court's grant of preliminary objections and dismissal of the Bolicks' claims against Northeast and Kurtz, who had raised the statute of limitations defense in their preliminary objections. We also upheld the trial court's dismissal of the Bolicks' claims against the County, the Borough, and Borough Manager Edward T. Cuff, III, based on those parties' preliminary objections asserting immunity from the Bolicks' suit. Id., slip op. at 17-30, 2021 WL 3642344, at *9-14.
However, two defendants, News Item and Bower, did not file preliminary objections with the trial court. Instead, both filed answers with new matter asserting, inter alia, that the Bolicks' claims against them were barred by the applicable statute of limitations and the Bolicks' failure to exhaust statutory remedies under the Eminent Domain Code.[3] Bolick I, slip op. at 5-7, 2021 WL 3642344, at *2-3. We therefore reversed the trial court's dismissal of those parties as premature and remanded for further proceedings. Id., slip op. at 5-7, 2021 WL 3642344, at *2-3.
On remand, News Item and Bower both filed motions for judgment on the pleadings, which the trial court granted in its October 20, 2021, Order. Trial Ct. Order, 10/21/21 (appended to the Bolicks' brief).[4] In its subsequent opinion, the trial court stated that it granted the motions for the same reasons it had previously dismissed the other defendants, specifically that the Bolicks' failure to perfect the transfer from federal to state court meant that the statute of limitations on their claims was never tolled and had expired before they filed in state court in January 2017, and that the Bolicks had failed to exhaust their statutory remedies. Reproduced Record (R.R.) at 70a-71a (). On the Bolicks' appeal to this Court, briefing is complete, and this matter is ripe for disposition.
Pfister v. City of Phila., 963 A.2d 593, 596 n.7 (Pa. Cmwlth. 2009). "Further, we will sustain the trial court's grant of judgment on the pleadings only where the movant's right to succeed is certain and the case is so free from doubt that trial would be a fruitless exercise." N. Sewickley Twp. v. LaValle, 786 A.2d 325, 327 (Pa. Cmwlth. 2001). In considering a motion for judgment on the pleadings, this Court must accept all of the non-movant's well-pled allegations as true. Ridge v. State Emps. Ret. Bd., 690 A.2d 1312, 1314 n. 5 (Pa. Cmwlth.1997). The Court will grant a motion for judgment on the pleadings only where there are no material facts at issue and the law is clear that no recovery is possible. Id.
A lawsuit for defamation, including allegations of libel, must be brought within one year of a defamatory communication. 42 Pa.C.S. § 5523(1); Abernethy v. Williams, 584 A.2d 1085, 1087 (Pa. Cmwlth. 1990). The clock begins with the original publication of the allegedly defamatory material, which is considered the triggering tortious act. See Graham v. Today's Spirit, 468 A.2d 454, 457 (Pa. 1983).
The Bolicks argue that Section 5103(b)'s transfer rules requiring documentation from the federal action do not apply here because the federal court dismissed their action as a "policy decision" or an exercise of discretion rather than a true lack of federal court jurisdiction that would trigger the requirements of Section 5103(b). Bolicks' Br. at 9, 19, 23 & 27-28. They posit that the trial court therefore misapplied Section 5103(b) to their case by dismissing their claims against News Item as time-barred. Id. at 12.
In response, News Item relies on Bolick I's determination that the Bolicks' failure to perfect the transfer of their claims to state court resulted in the continued running and ultimate expiration of the one-year statute of limitations for defamation actions. News Item's Br. at 7-12. News Item points out that the articles the Bolicks alleged to be defamatory were published in March 2014 and March 2015, and therefore, the one-year statute of limitations elapsed, without perfection of the transfer from federal court, in March 2015 and March 2016, respectively, well before the Bolicks filed their Praecipe with the trial court in January 2017. Id.
The trial court granted News Item's motion for judgment on the pleadings because it concluded that the Bolicks' failure to perfect the transfer of their cause of action from the federal court to the trial court meant the statute of limitations continued to run and ultimately expired rendering the Bolicks' defamation claims against News Item time-barred. Trial...
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