As practitioners, attorneys sometimes tend to overlook the small, mundane, but otherwise extremely important tasks. However, this neglect can lead to a variety of troubles in your practice and for your client. One example in this regard pertains to the task of perfecting service of original process on a defendant, particularly when this is attempted close to the expiration of the applicable statute of limitations. If a plaintiff does not follow through and make a good faith effort to serve original process in a timely manner, then there is a serious risk that the action may be dismissed.
According to Pa. R.C.P. 401(a), original process shall be served in the commonwealth by the Sheriff’s Department within 30 days after the issuance of a writ or the filing of a complaint, Pa. R.C.P. 401(a).
The plain language of Rule 401 prevents a plaintiff from commencing an action to protect the statute of limitations, and yet delay the service of the notice of the litigation to the defendant, thereby undermining the purpose of the statute of limitations, as in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976). The purpose of the statute of limitations is to expedite litigation and thereby discourage any delay of the presentation of stated claims which may greatly prejudice the defense of such claims, as in Insurance Company of North America v. Carnahan, 284 A.2d 728, 729 (Pa. 1971). If the defendant is not promptly notified that an action has been commenced against him or her, this purpose of the statute of limitations cannot be fulfilled, as in McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005).
You Can’t Do Nothing
The Pennsylvania Supreme Court has clarified the relevant legal principles regarding perfection of service of original process over several notable decisions. In Lamp v. Heyman, the Supreme Court held that service of original process completes the process of tolling the statute of limitations. The Supreme Court in Lamp reasoned that there was “too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service.”
Accordingly, the Lamp court held that “a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.”
You Must Try Something
The Pennsylvania Supreme Court revisited its holding in Lamp in the case of Farinacci v. Beaver County Industrial Development Authority, 511 A.2d 757 (1986). The Lamp holding was extended in Farinacci to require that plaintiffs not only refrain from stalling litigation that was commenced, but to also demonstrate a “good-faith effort to effectuate notice of commencement of the action.”
After these decisions by the Pennsylvania Supreme Court in Lamp and Farinacci, the Superior Court and the Commonwealth Court split on the issue of what constituted a good faith effort to complete service. After this split of authority arose, the Supreme Court clarified the good faith requirement in its more recent decision in the case of McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005).
The Supreme Court in McCreesh clarified the Lamp/Farinacci decisions in regards to timely service of original process in order to toll the statute of limitations. According to the Supreme Court in McCreesh, a case will not be dismissed under Lamp where:
- There has been a good-faith effort to obtain service despite technical noncompliance with the Rules of Civil Procedure, and
- The defendant has received actual notice of the original process,
- If the first and second were met, then the case will not be dismissed for service issues unless the defendant suffered actual prejudice as a result of the noncompliance with the Rules on service. The McCreesh court also held that the inquiry into whether the plaintiff acted in good faith lies within the sound discretion of the trial court.
Further Clarification of the Rules on Service
After McCreesh, the Superior Court of Pennsylvania further clarified the good faith/actual notice requirement outlined by the Pennsylvania Supreme Court’s decisions in Lamp, Farinacci and McCreesh. In Englert v. Fazio Mechanical Services, 932 A.2d 122 (Pa. Super. 2007) the Superior Court held that it is the plaintiff’s burden to prove that the actions taken to complete service were reasonable. In so ruling, the Englert court held that even acts that are unintentional that work to delay a defendant’s notice of the action may constitute a lack of good faith on the part of the plaintiff with respect to service of process, as in Englert, 932 A.2d at 124 citing Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004).
The plaintiffs in Englert were injured in an auto accident and filed a writ of summons well before the statute of limitations was set to expire. The plaintiffs in Englert sent the writ of summons to the sheriff for service. However, the sheriff’s office was unable to complete service of the writ because the defendant had moved. Even though the plaintiff had the resources to check on the status of service, plaintiff’s counsel did not learn that the Writ was not served until after the statute of limitations expired. The defendant in Englert filed preliminary objections to the complaint because of the lack of service of original process.
According to the Superior Court in Englert, “it is not necessary that the plaintiff’s conduct be such that it constitutes some bad faith act or overt attempt to delay before the rule of Lamp will apply.” The Superior Court in Englert reiterated that simple neglect and mistake to fulfill the responsibility to see that the requirements for service are carried out may suffice to bring the rule in Lamp to bear.
While the plaintiff’s attorney may have been previously in communication with the defendant’s insurance carrier and her insurance defense counsel, such conduct is not sufficient under Pennsylvania law to provide actual notice to the party defendant, Cynthia Zolner, of the formal commencement of the lawsuit as required by the Pennsylvania Rules of Civil Procedure and Pennsylvania law, as in Ferrara v. Hoover, 636 A.2d 1153, 1153 (Pa. Super. 1994).
In Ferrara v. Hoover, the Pennsylvania Superior Court held that notice to an insurance company or insurance company’s lawyer of the filing of original process is insufficient to toll the statute of limitations when there has been no good faith effort on the part of the plaintiff to serve process on the actual party defendants. Specifically, the Ferrara court wrote, “We find no merit in the contention communication between plaintiff and defendants’ insurance adjuster serves as a substitute for actual service of process.”
The Ferrara court more specifically found that the providing of pleadings to a defendant’s insurance adjuster does not act as a substitute for proper service of original process upon the proper party defendant. The court in Ferrara stated that, even assuming that notice of a lawsuit was provided to the defendant’s insurance carrier, actual notice of a potential for litigation is not enough because the Rules of Civil Procedure and Pennsylvania law pertaining to proper service require that the party defendant must have actual notice of the commencement of the lawsuit.
As with a quarterback, a pitcher, a golfer or with a jump shot, the “follow through” may be the most important action taken by the athlete in each of their respective sports. The “follow through” motion guides the direction of the ball and increases the athlete’s chances for success. Similarly, “following through” with the tasks associated with completing original process guides the new legal action and ensures that the case will be allowed to proceed. The cases of Lamp v. Heyman and its progeny analyzed above remain a consistent reminder that an action can be dismissed if the “follow through” on service of process is instead neglected.
Stephen T. Kopko is an associate attorney with the firm who focuses on the defense of auto accident and premises liability matters.
Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.