Galeone, J. v. Rodeway Inn
1143 EDA 2020
Pa. Super. Ct.Jul 23, 2021Background
- On August 6, 2017 Galeone (a person with epilepsy) went to Rodeway Inn with a service dog; he alleges Rodeway manager Brian K. refused to rent and mocked him; defendants give a contrary account.
- Galeone filed suit July 14, 2018 (IIED and Title III ADA). He served Rodeway and Brian K. in-state on Oct. 17, 2018 and Choice (franchisor) out-of-state on Oct. 22, 2018.
- Choice filed preliminary objections arguing untimely service under Pa.R.C.P. 404(a); plaintiff filed an Amended Complaint and the court initially overruled Choice’s objections (Apr. 11, 2019).
- Default was entered against Rodeway and Brian K. (Oct. 2, 2019); they later opened/struck the defaults and raised defective/untimely service (Rule 401(a)).
- All defendants moved for summary judgment (Nov. 2019); the court granted summary judgment (Feb. 2020), holding plaintiff failed to timely and properly effectuate service (so statute of limitations barred claims), and separately disposing of vicarious-liability and IIED claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timely service / Lamp good-faith inquiry | Galeone: actual notice to defendants and diligence justify imperfect service; dismissal improper | Defs: plaintiff failed to comply with Pa.R.C.P. 401/404 and did not reinstate complaint; statute barred | Court: plaintiff did not make a good-faith, diligent effort; service was untimely and claims time-barred |
| Waiver of service objections (procedural) | Galeone: Rodeway/Brian K. slept on rights by not raising service in preliminary objections | Defs: they never participated in pretrial or discovery and raised service when they first appeared | Court: Cinque inapposite; no waiver where defendants did not participate and appeared only after default |
| Coordinate-jurisdiction / law-of-the-case (earlier order overruling prelim. objs.) | Galeone: earlier order overruling prelim. objections settled service issue; later reversal unfair | Defs: later motions were different in kind (motions to open/strike and summary judgment) | Court: Mellon Bank principle controls—different motions permit reconsideration; no coordinate-jurisdiction bar |
| Merits: franchisor vicarious liability & IIED proof | Galeone: Choice is vicariously liable; IIED supported by facts | Defs: Choice lacked requisite control over day-to-day operations; Galeone failed to disclose expert medical testimony for emotional injury | Court: Summary judgment affirmed—no agency/franchisor control shown; IIED requires expert proof of emotional injury which plaintiff failed to produce |
Key Cases Cited
- Lamp v. Heyman, 366 A.2d 882 (Pa. 1976) (limits tolling where plaintiff stalls judicial process)
- Farinacci v. Beaver County Industrial Development Authority, 511 A.2d 757 (Pa. 1986) (requires plaintiff to show a good-faith effort to effectuate service)
- McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005) (actual notice can cure technical service defects absent intent to stall or prejudice)
- Gussom v. Teagle, 247 A.3d 1046 (Pa. 2021) (summarizes Lamp/Farinacci/McCreesh good-faith service framework)
- Cinque v. Asare, 585 A.2d 490 (Pa. Super. 1990) (defect in service waived where defendant participates and files answers/discovery)
- Myszkowski v. Penn Stroud Hotel, 634 A.2d 622 (Pa. Super. 1993) (franchisor liability requires control of manner and result of operations)
- Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988 (Pa. 1987) (expert medical proof required to establish emotional injury for IIED)
- Gray v. Huntzinger, 143 A.3d 924 (Pa. Super. 2016) (reiterates need for expert testimony to prove emotional injury in IIED)