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There’s no rule dictating when the transfer of a case from federal to state court will no longer be considered “prompt” as required under Pennsylvania law, but the Superior Court recently concluded that the seven months lapsing between federal court dismissal and transfer definitely lacked “promptitude.” The case involved a paralegal who went four times to the Delaware County trial court trying to transfer an assault and battery claim. Court staff told him he didn’t have the right documentation until his last trip, when the transfer was finally completed. Promptly, the defendant objected to the lateness of the transfer. The trial court agreed and dismissed the matter. On appeal, the paralegal’s boss, Leonard R. Parks, charged the judicial staff with “ineptitude,” according to the opinion. Parks argued that the “one and only reason the transfer was not ‘properly effectuated’ was because the [office of judicial support] improperly and erroneously failed to cooperate with plaintiff’s prompt and proper efforts to do so, due to the failure of the OJS to understand and follow or even have proper awareness of proper transfer procedures.” The Superior Court disagreed. In an unpublished opinion, it concluded that the seven-month delay in transferring the case warranted the dismissal of Tarlecki v. Mercy Fitzgerald Hospital. The three-judge panel emphasized how the court has “repeatedly held that a litigant needs to act promptly to effectuate transfer of a federal case which has been dismissed for jurisdictional reasons.” The judges highlighted how Parks’ law firm waited two and a half months before first sending the paralegal to the Delaware County Court of Common Pleas to transfer the action against Mercy Fitzgerald Hospital in Darby Borough. Park did not return calls to his office for comment. The claim against the hospital had been part of a civil rights lawsuit filed in federal district court against multiple defendants, including Darby Borough police officers, according to the opinion. After some claims in the case were dismissed, the hospital was dismissed from the federal action for lack of jurisdiction because the only remaining claim against it was a state law claim, according to the opinion. The first time the paralegal visited the Delaware County court, court staff refused to transfer the case because the paralegal apparently turned in the wrong document, according to the opinion. Instead of bringing a certified copy of the district court’s order dismissing the hospital from the federal action, the paralegal had a copy of an order showing that a verdict had been entered in favor of the other defendants in the action (not the hospital), according to the opinion. Under 42 Pa.C.S.A. Section 5103, the statute permitting plaintiffs to transfer a federal case that was dismissed for jurisdictional reasons, the party must promptly “file a certified copy of the final order of the federal court dismissing their case,” the Superior Court explained. The paralegal returned to the office three months later to try again, and then again the month after that. On his fourth visit, in April 2003, the transfer was completed, according to the opinion. The hospital, represented by Arthur Keppel of Mylotte David & Fitzpatrick, filed preliminary objections claiming that the transfer was completed too late and arguing for the case’s dismissal, Keppel said. “By judicial fiat, to act on the statute and transfer the case you must act on a timely basis, which the court has suggested should be in the neighborhood of 30 days,” Keppel explained. Keppel was referring to an earlier decision, Collins v. Greene County Memorial Hospital, in which the Superior Court “called for the Legislature to include a specific 30-day time requirement in the provisions of 42 Pa.C.S.A. Section 5103.” Notably, in Collins, the court deemed untimely a seven-month delay between dismissal of the federal action and a transfer to state court. The court deemed untimely a nearly one-year delay in Ferrari v. Antonacci. In Tarlecki, Common Pleas Judge George A. Pagano held an evidentiary hearing in January. There, Parks “averred that unnamed personnel in the office of judicial support, prior to April 11, 2003, were either confused as to the proper transfer procedure and/or simply refused to perform their ministerial duty to accept and file the documents his paralegal presented,” according to the opinion. In their opinions, Pagano and the Superior Court both pointed out that Parks did not call any witnesses at the hearing — not the court clerks or the paralegal — to testify. When asked, Parks told the court he did not have any corroborating evidence to support his arguments, according to the opinion. Pagano found that the seven-month delay in transferring the action to state court warranted the dismissal of the action, according to the opinion. The Superior Court’s Aug. 27 opinion affirmed Pagano’s order. “We find that that court allowed appellant the opportunity to present evidence to support his claim that the office of judicial support was at fault for the lack of promptitude in transfer, but that appellant failed in his burden of proof to support the claim,” the court wrote. Judge Joseph A. Hudock and Senior Judges Patrick R. Tamilia and James R. Cavanaugh participated in the decision. A footnote in the opinion notes that the decision was reached prior to Cavanaugh’s death Aug. 13.

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