Ferraro, B. v. Patterson-Erie, Aplt.

• Court: Supreme Court of Pennsylvania
• Decided: April 25, 2024
• Docket: 1 WAP 2023
• Status: Published

Opinion

[J-54-2023] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

BEVERLY FERRARO, : No. 1 WAP 2023 : Appellee : Appeal from the Order of the : Superior Court entered May 27, : 2022 at No. 1291 WDA 2021, v. : Affirming the Order of the Court of : Common Pleas of Butler County : entered July 23, 2021 at No. 2020- PATTERSON-ERIE CORPORATION D/B/A : 10245 BURGER KING AND BURGER KING : CORPORATION, : ARGUED: October 17, 2023 : Appellant :

OPINION

JUSTICE DONOHUE DECIDED: APRIL 25, 2024 The question presented in this appeal is whether the plaintiff met the good faith

standard of diligent attempt at timely service of process on the defendant so that dismissal

of her complaint was not warranted.

The plaintiff, Beverly Ferraro, slipped and fell in a Butler County Burger King on

August 26, 2018. She originally filed a complaint against the defendant, Patterson-Erie

Corporation D/B/A Burger King and Burger King Corporation (“Burger King”) on March 4,

2020,1 within the two-year statute of limitations for negligence actions established in 42

1 There is dispute regarding the identification of the defendants, who assert that there is no entity named Patterson Erie Corporation d/b/a/ Burger King in operation at the identified address, and that they are PEC Management, II, LLC. Answer and New Matter, 12/14/2020, ¶ 3. Because that dispute does not impact the resolution of the present appeal, we refer to defendants as “Burger King” for ease of discussion. Pa.C.S. § 5524. Ferraro forwarded instructions and payment to the Sheriff to serve the

complaint, but service was not effectuated. After the complaint lapsed and without its

reinstatement, Ferraro arranged for a private process server to deliver the lapsed

complaint to Burger King, which was accomplished. Eight months after the original filing

of the complaint, and approximately two-and-a-half months after the two-year statute of

limitations would have elapsed absent filing the original complaint, Ferraro reinstated the

complaint and effectuated service of the complaint upon Burger King through the Sheriff.

Burger King filed an answer, asserting as new matter that the action was barred by the

statute of limitations. Burger King reasserted the issue in a motion for judgment on the

pleadings, which the trial court denied. In an interlocutory appeal, the Superior Court

affirmed. This Court granted review of the following question:

Whether the Superior Court’s conclusion that [Ferraro] was excused from compliance with the Rules of Civil Procedure to serve [Burger King] timely and via the Sheriff before the statute of limitations expired was in conflict with this Honorable Court’s holdings on the same legal question and other holdings of the intermediate appellate courts?

Ferraro v. Patterson-Erie Corp., 290 A.3d 645 (Pa. Jan. 4, 2023) (per curiam). For the

reasons explained in this opinion, we reverse the order of the Superior Court.

Factual and procedural history

The pleadings, the docket, and the briefs and arguments of the parties establish

that the following facts are not in dispute.2 On March 4, 2020, Ferraro filed a complaint

2 This case is infected with multiple procedural irregularities. First, Burger King challenged the efficacy of Ferraro’s service of process by way of new matter raising the statute of limitations. In McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005), we made clear that a challenge arising under the rule articulated in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), and its progeny is a challenge to service of process and not a challenge based on the statute of limitations. McCreesh, 888 A.2d at 668 n.10. Pennsylvania Rule of Civil Procedure 1028 requires challenges to service of process to be made by filing preliminary objections endorsed with a notice to plead and to be decided (continued…)

[J-54-2023] - 2 in civil action (“Complaint”) in the Court of Common Pleas of Butler County, raising one

count of negligence against Burger King for a slip and fall she suffered on its premises on

August 26, 2018. Complaint, 3/4/2020, ¶¶ 2, 8, 10. The case was assigned to the

Honorable S. Michael Yaeger. Order, 3/5/2020, at 1.

On March 9, 2020, Ferraro mailed the Sheriff of Butler County a cover letter, a

certified copy of the Complaint, and a check to pay for service. Trial Court Opinion,

12/28/2021, at 2 (citing Ferraro’s response in opposition to judgment on the pleadings,

3/9/2021, ¶ 3 (hereinafter “Response”)). There is nothing on the docket reflecting any

action by the Sheriff to effectuate service. The COVID-19 pandemic was officially

recognized as a public health emergency by the Governor on March 6, 2020, and on

March 18, 2020, this Court entered a comprehensive order establishing protocols during

the emergency. Governor Wolf, “Proclamation of Disaster Emergency,” (Mar. 6, 2020),

Commonwealth of Pennsylvania Office of the Governor,

https://www.governor.pa.gov/wp-content/uploads/2020/03/20200306-COVID19-Digital-

Proclamation.pdf (“Governor's Proclamation”); Order (Nos. 531 and 532 Judicial

Administration Docket), 3/18/2020. Ferraro assumed that this explained the lack of

service by the Sheriff of the Complaint. However, according to docket entries in other

cases produced by Burger King, the Sheriff of Butler County served original process

during this time period in other cases. Approximately two months after the unsuccessful

attempt at service, in early May 2020, Ferraro employed a private process server, who

hand-delivered a copy of the original Complaint to Burger King. Id. at 2 (citing Response,

on an evidentiary record. Pa.R.C.P. 1028(a)(1) and note. However, Ferraro did not file preliminary objections challenging the new matter raising the defect in service based on Burger King’s failure to comply with rule of court pursuant to Pa.R.C.P. 1028(a)(1). Instead, the trial court allowed the parties to develop the facts underlying this dispute in the briefs and arguments filed as a result of Burger King’s motion for judgment on the pleadings. Because Ferraro did not object to this procedure and the facts appear to be uncontested, we will decide the appeal based on those facts.

[J-54-2023] - 3 3/9/2021, Exh. 2 (Heaven Sent Legal Services notarized affidavit of service dated

5/8/2020)). Ferraro understood that this did not constitute service of process under the

Rules of Civil Procedure. This action was taken to give notice of the lawsuit to Burger

King. Ferraro did not take action to perfect service of the Complaint 3 until November 3,

2020, when Ferraro filed a praecipe to reinstate the Complaint and instructed the Sheriff’s

Office to make service. On November 30, 2020, the Sheriff formally served the Complaint

upon Burger King. Affidavit of Service, 12/8/2020, at 1.

On December 14, 2020, counsel for Burger King entered an appearance and filed

an answer to Ferraro’s complaint. In new matter, Burger King asserted, inter alia, that it

was not properly served until November 2020, and therefore, the claims are barred by the

applicable two-year statute of limitations. Answer and New Matter, 12/14/2020, ¶¶ 20-

22; see also Amended Answer and New Matter, 1/19/2021, ¶¶ 20-22. Ferraro filed a

reply to the new matter, denying all allegations as legal conclusions to which no response

is required and specifically denying factual allegations and demanding proof of them.

Reply to new matter, 2/2/2021, ¶¶ 19-31. Thereafter, Burger King filed a motion for

judgment on the pleadings premised on Ferraro’s failure to make a good faith effort to

timely serve the Complaint. Motion for Judgment on the Pleadings, 2/9/2021, ¶¶ 3, 14.

The trial court scheduled argument on the motion and set deadlines for pre-

argument briefing. Order, 2/11/2021. Relying principally on McCreesh v. City of

Philadelphia, 888 A.2d 664 (Pa. 2005), Ferraro maintained that she “made regular,

extraordinary, and immediate attempts to serve the subject [C]omplaint.” Brief, 6/7/2021,

3 During this time, Ferraro was twice advised of the need to make technical modifications to the Complaint to comply with the practice of the Court of Common Pleas of Butler County. Return of Document, 5/27/2020, at 1, Return of Document, 6/3/2020, at 1. It is unclear how these technical deficiencies were corrected, but Burger King does not complain of them in this appeal.

[J-54-2023] - 4 at 3.4 She asserted that Burger King received notice of the Complaint and was not

prejudiced. Id. at 2 (asserting that Burger King was provided with notice by the private

process server “to avoid arguments of prejudice” and to ensure it was aware of the action).

For its part, Burger King contested whether Ferraro established under the facts that she

made a good faith effort at service, and it sought dismissal based on the statute of

limitations because Ferraro only attempted service of process through the Sheriff once

prior to the expiration of the statute of limitations and did not again attempt service until

more than two months after the statute of limitations expired. Reply in Support of Motion

for Judgment on the Pleadings, 6/29/2021, at 1 (citing Pa.R.C.P. 400(a) (emphasis

added)).5

At oral argument, Ferraro’s counsel explained his rationale for using a private

process server. He advised the court that he was not arguing that original process is not

required, and he was “not attempting to supplant the Sheriff with a private process server.”

N.T. 7/9/2021, at 23. Instead, he characterized the private process server as a

“supplement to ensure actual notice of the suit was received[.]” Id. at 23-24. According

to Ferraro’s counsel, the only possible evidence of good faith would be “sending the

[C]omplaint with directions and a check for the services of the Sheriff to the Sheriff[,]”

which he did, and which counsel established. Id. at 24. Following oral arguments the

trial court denied Burger King’s motion for judgment on the pleadings.6 Burger King filed

a petition for permission to appeal which the Superior Court granted, and the trial court

stayed the proceedings during the pendency of the appeal. Ferraro v. Patterson-Erie

4 Because the pages are unnumbered, page numbers are assigned starting with the first

page of the pleading as page 1, excluding the cover page. 5 Because the pages are unnumbered, page numbers are assigned starting with the first page of the pleading as page 1, excluding the cover page. 6 Trial Court Order, 7/9/2021, at 2.

[J-54-2023] - 5 Corp., 279 A.3d 1291 (Table), 2022 WL 1717935 at *1 (Pa. Super. May 27, 2022);7 Trial

Court Order, 7/23/2021. Burger King timely filed a Pennsylvania Rule of Civil Procedure

Rule 1925(b) concise statement of matters complained of on appeal, raising as its single

issue whether the trial court erred in concluding that Ferraro made a good faith effort to

serve Burger King before the expiration of the statute of limitations, “when she

disregarded the Rule[s] of Civil Procedure requiring the Sheriff to properly and timely

serve her [C]omplaint, allegedly due in part to [COVID-19]?” Pa.R.A.P. 1925(b)

Statement, 11/15/2021, ¶ 1.

In its Rule 1925(a) opinion, the trial court identified Lamp v. Heyman, 366 A.2d 882

(Pa. 1976), Farinacci v. Beaver County Industrial Development Authority, 511 A.2d 757

(Pa. 1986), McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005), and Gussom v.

Teagle, 247 A.3d 1046 (Pa. 2021) as the seminal and controlling cases8 and found that

Ferraro’s conduct was similar to that of the plaintiff in McCreesh. Trial Court Opinion,

12/28/2021, at 3. It recounted that Ferraro properly forwarded the Complaint to the Sheriff

for service, but service was “inexplicably not accomplished.” According to the trial court,

Ferraro hired a private process server “who accomplished service on [Burger King] the

same day.” Id. at 8. The court then observed that, like McCreesh, Ferraro utilized a

method of service that “was not proper under the Pennsylvania Rules of Civil

Procedure[.]” Id. The trial court emphasized that “this faulty attempt provided [Burger

King] with actual notice of not only the commencement of the suit, but also the underlying

7 Where a court issues an interlocutory order, it may indicate, where appropriate that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter[.]” 42 Pa.C.S. § 702(b). The law authorizes the appellate court to exercise its discretion to permit an appeal from such an order. Id. see also, Pa.R.A.P. 312. (Interlocutory Appeals by Permission). 8 The cases relied on by the trial court are discussed in detail later in this opinion.

[J-54-2023] - 6 facts giving rise to the suit[.]” Id. Comparing further to McCreesh, the trial court cited

Ferraro’s conduct in reinstating her Complaint two months after expiration of the statute

of limitations, and the fact that the Sheriff thereafter promptly accomplished service. Id.

Again aligning the circumstances to those in McCreesh, the trial court observed that

Ferraro “engaged in a good faith effort to properly serve [Burger King] with the [Complaint]

within the applicable time period, provided actual notice to [Burger King] of the

commencement of suit, and any delay in proper service or reinstatement of the Complaint

was not an attempt to stall the judicial machinery.” Id. at 9.

In response to Ferraro’s reliance on the COVID-19 pandemic as a justification for

her approach, the trial court declined to delve into the specific orders issued by the

Governor or this Court, or whether those circumstances actually impacted Ferraro’s

approach to effectuating service of process. Nonetheless, it stated that it “believe[d] that

the occurrence of the pandemic and the struggles and confusion it wrought relative to

remote work and limited office access should be borne in mind as they relate to any

analysis of [Ferraro]’s good faith effort to serve the Complaint on [Burger King] during this

period of time.” Id.

Finally, the trial court addressed prejudice. It stated that Burger King failed to

demonstrate any prejudice resulting from Ferraro’s actions given that it was on actual

notice of the Complaint and lawsuit. Id. at 9.

In deciding Burger King’s interlocutory appeal, the Superior Court stated that the

trial court’s opinion was “thorough and well-reasoned” in its explanation of its denial of

relief. Ferraro, 2022 WL 1717935 at *2. Burger King argued that Ferraro was under an

obligation to take action to meet her good faith burden, such as by: “(1) contacting the

Sheriff’s Office to ensure the complaint [was] received and being served, (2) timely and

continually reinstating the complaint prior to its expiration, and/or (3) seeking leave of

[J-54-2023] - 7 court for alternative service” pursuant to Pennsylvania Rule of Civil Procedure 430.

Burger King’s Superior Court Brief, at 32-35. In support of requiring Ferraro to continually

reinstate the Complaint, Burger King cited an opinion representing the view of two

Justices in Witherspoon v. City of Philadelphia, 768 A.2d 1079, 1084 (Pa. 2001) (Zappala,

J., Opinion Announcing Judgment of the Court (“OAJC”)), stating that, “if service cannot

be made, the process must be immediately and continually reissued until service is

made.” Id. at 33-34 (citing Witherspoon, 768 A.2d at 1984). In response to Burger King’s

arguments regarding “perceived lapses in vigilance” by Ferraro, the Superior Court noted:

[Burger King] does not dispute that [Ferraro] followed the correct procedure in arranging service of the [C]omplaint, and that for unknown reasons, the [S]heriff failed to effect service. Further, [Burger King] does not point to any legal authority requiring the vigilant oversight it advances. Albeit in another context, our Supreme Court has refused to find a lack of due diligence where a party relied on the court system to follow procedures and deliver papers in a timely manner. See Commonwealth v. Bradford, 46 A.3d 693, 704-05 (Pa. 2012).[9] Id. at *2 n.2. Therefore, the Superior Court adopted the trial court’s opinion affirming the

denial of Burger King’s motion for judgment on the pleadings. Id. at *2-*3.

We granted review to address whether the lower courts’ conclusions that Ferraro

engaged in a good faith effort to properly serve Burger King such that she was excused

from compliance with the Rules of Civil Procedure conflict with our precedent.10 Ferraro,

290 A.3d at 645.

9 In Bradford, this Court deemed delay that occurred as a result of the Magisterial District Judge’s mistake and failure to comply with the Rules “delay beyond the Commonwealth’s control,” and therefore held it was not inconsistent with finding that the Commonwealth acted with due diligence under Rule 600 of the Pennsylvania Rules of Criminal Procedure. Bradford, 46 A.3d at 704-05. 10 The question of whether the lower court’s decision conflicts with the holdings of this Court on the issue of whether plaintiff demonstrated a good faith effort to effectuate (continued…)

[J-54-2023] - 8 Arguments of the Parties

Burger King’s Arguments

Burger King argues that it was Ferraro’s burden to prove that she made a good

faith effort to effectuate service in a timely manner. Burger King asserts that timely and

proper service is critical, and without it, the commencement of the action is nullified and

the statute of limitations is not tolled. Burger King’s Brief at 16. Its view is that the rules

of service must be strictly followed. Id. at 17 (citing Sharp v. Valley Forge Med. Ctr. &

Heart Hosp., Inc., 221 A.2d 185, 186 (Pa. 1966)).

Burger King traces the development of the case law, deriving from Lamp and

Farinacci the “good faith effort” standard and a requirement that plaintiffs “‘comply with

the local practice to ensure … prompt service of process.’” Id. at 19 (citing Farinacci, 511

A.2d at 759). Next, it recognizes that McCreesh carved an exception to this rule, “that a

plaintiff should not be punished for ‘technical missteps’” and distinguishes McCreesh here

because Ferraro’s counsel’s conduct was not a “technical misstep.” Id. at 19-20 (citing

McCreesh, 888 A.2d at 674). According to Burger King, Ferraro “made no attempt to

ensure” service was effectuated within the thirty days of filing of the Complaint. Id. at 21

(emphasis in original).

Burger King then highlights this Court’s most recent opinion in the Lamp line of

cases, Gussom, which it reads as clarifying the plaintiff’s evidentiary burden to establish

a good faith effort to diligently and properly effectuate service. Id. at 21-23 (citing

Gussom, 247 A.3d at 1056). Burger King interprets Gussom as “clarifying … that

McCreesh involved ‘improper but diligent attempts at service.’” Id. at 23 (citing Gussom,

247 A.3d at 1057) (emphasis added). Further, it notes that the Gussom Court

service of process is a question of law for which “our scope of review is plenary, and our standard of review is de novo.” Gussom v. Teagle, 247 A.3d 1046, 1052 n.4 (Pa. 2021) (internal citation omitted).

[J-54-2023] - 9 emphasized a plaintiff’s duty of diligence by repeating it eight times in the opinion. Id. at

23 (citing Gussom, 247 A.3d at 1048, 1056-57). Relying on Gussom, Burger King argues

that providing actual notice without engaging in a good faith effort to effectuate proper

service is insufficient to meet the plaintiff’s burden. That is, independent of the question

of whether the plaintiff intended to stall the judicial machinery or whether the defendant

was prejudiced, the plaintiff “carries an evidentiary burden to demonstrate that she met

her good faith mandate.” Id. at 24-25 (citing Gussom, 247 A.3d at 1057).

Burger King maintains that the burden exists even where a defendant has actual

notice of the lawsuit. Id. at 25 (citing Galeone v. Rodeway Inn Ctr. City, 2021 WL 3126754

(Pa. Super. July 23, 2021) (non-precedential decision)11). Stated differently, it asserts

that “actual notice without a good faith attempt at diligent and proper service is insufficient

to meet plaintiff’s burden.” Id.at 27.

Next, Burger King argues that the “overwhelming weight of authority” requires a

plaintiff to do more than simply provide a complaint to a sheriff one time to establish a

good faith effort, pushing back on the Superior Court’s suggestion that Burger King was

arguing for “vigilant oversight.” Id. at 27-28. In this vein, Burger King aligns its situation

with that of Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122 (Pa. Super. 2007),

in which the plaintiff timely filed a complaint and forwarded it to the sheriff for service.

There, like here, the sheriff did not effectuate service. Subsequently, six days after

expiration of the statute of limitations, the plaintiff filed a praecipe to reinstate the

complaint. The trial court dismissed the action, and in affirming, the Superior Court faulted

11 In Galeone, the plaintiff commenced an action by filing a complaint nearly a year before

the statute of limitations date. Still within the statute of limitations but months after filing the complaint, plaintiff effected service of original (lapsed) process on the defendants. Galeone, 2021 WL 3126754 at *2. Then more than nine months passed (including the statute of limitations date), during which time, plaintiff did not reinstate his complaint or effectuate proper service. Id. at *9. The Superior Court panel concluded that the plaintiff’s conduct did not qualify as a good faith effort to accomplish service of process. Id.

[J-54-2023] - 10 plaintiff because she “took no action … to ascertain whether service was properly made.”

Id. at 28-29 (citing Englert, 932 A.2d at 126-27). The court rejected plaintiff’s contention

that “[t]he filing of a praecipe and the delivery of the writ one time is all that the law

requires[,]” explaining that the plaintiff’s position was “quite simply, contrary to the case

law in this [C]ommonwealth.” Id. at 29 (citing Englert, 932 A.2d at 127). According to

Burger King, the plaintiff’s responsibility to take greater action to make a good faith effort

to serve the complaint is confirmed by a plethora of case law. Id. at 29-31.12 It asserts

that Ferraro cannot cite a single case to the contrary. Id. at 31-32.

Burger King asserts that the Superior Court panel disregarded the plethora of

authorities it cites and instead relied on Bradford, which it highlights was from “another

context.” Id. at 32 (emphasis added). After recounting the Rule 600 issue raised in

Bradford, Burger King recounts that the error in that case was “that of the magisterial

court” and “not the party.” Id. at 33. It notes that the prosecutor in Bradford had

demonstrated due diligence through evidence of its internal tracking system, in

accordance with this Court’s observation that “‘Practicing lawyers must maintain

docket books to make sure that they appear in court on the right date, file pleadings

on time, complete discovery in a timely fashion, and do not run afoul of statutes of

limitations.’ ” Id. at 33 (citing Bradford, 46 A.3d at 704 (internal citations omitted))

(emphasis added).

Burger King derives a “common theme” from the precedent: the plaintiff bears the

burden of establishing that “she made a good faith effort to diligently and properly serve

the complaint, which requires more than sending one piece of mail to the sheriff.” Id. at

12In support, it cites the OAJC in Witherspoon, 768 A.2d at 1079, as well as a string of non-precedential decisions from the Superior Court. See, e.g., Galeone, 2021 WL 3126754; Soisson v. Green, 2020 WL 7663837 (Pa. Super. 2020) (non-precedential decision).

[J-54-2023] - 11 33-34. It alleges that to meet her burden, Ferraro should have followed up with the

Sheriff’s Office or checked the available public docket and that her failure to do so “belies

a good faith effort to ensure diligent and proper service of a complaint.” Id. at 34.

As it did at argument before the trial court, Burger King notes that the law provides

“alternative options” of which Ferraro could have availed herself, starting with following

up with the Sheriff’s Office. Id. at 35-36. It also suggests that she could have sought

leave of court for alternative service pursuant to Pa.R.C.P. 430. Id. at 37-38. Burger King

also proposes that Ferraro could have immediately and continuously reinstated her

complaint, an approach Burger King states was “endorsed… in Witherspoon where [this

Court] stated: ‘if service cannot be made, the process must be immediately and

continually reissued until service is made.’” Id. at 38 (citing Witherspoon, 768 A.2d at

1084 (OAJC) (emphasis added by Burger King)13). Burger King concludes by arguing

that condoning Ferraro’s counsel’s conduct would erode the requirements that this Court

has established through rule and case law for timely and proper service. McCreesh, it

argues, is not “sufficiently elastic to include within technical noncompliance a total lack of

diligence” to ensure that service is made. Id. at 40-41.

Ferraro’s Arguments

Ferraro insists that she met the burden of establishing a good faith effort to

effectuate service. Ferraro’s Brief at 13. Ferraro believes that her case “fits squarely

within the reasoning” of McCreesh and that she has satisfied the good faith effort standard

more recently annunciated in Gussom. Id. at 18-20.

At points, she suggests a different view of the case law, interpreting it to mean that

so long as a plaintiff does not engage in a course of conduct designed to stall the litigation

13 As discussed below, a majority of the Court in Witherspoon rejected adoption of an “immediate and continuous” requirement. Only two Justices endorsed the requirement.

[J-54-2023] - 12 set in motion by the filing of a complaint, the commencement of the action remains valid

and the statute of limitations is tolled. Id. at 14 (citing Lamp, 366 A.2d at 885; McCreesh,

888 A.2d at 674; and Farinacci, 511 A.2d at 759-60). Though Ferraro argues that this

has been the status of the law since Lamp, she also concedes that Gussom sets a

standard requiring a plaintiff to “make a good faith effort to diligently and timely serve

original process upon a defendant.” Id. at 19 (summarizing Gussom, 247 A.3d at 1057).

She emphasizes that the Court has twice, first in McCreesh and subsequently in Gussom,

corrected “stricter requirements” that were being imposed by lower courts in the so-called

Teamann line of cases. Id. (citing Teamann v. Zafris, 811 A.2d 52 (Pa. Commw. 2002)).

According to Ferraro, the goal of a statute of limitations is to “expedite litigation

and thus discourage delay and the presentation of stale claims which may greatly

prejudice the defense of such claims.” Id. at 17 (citing McCreesh, 882 A.2d at 671). The

cases, she contends, provide that the real foe is strategic delay and that plaintiffs should

not be penalized with the extreme measure of dismissal for “technical missteps” where

the “purpose of the statute of limitations” is satisfied by giving a defendant actual notice.

Id. at 17-18. She faults Burger King for citing to cases which pre-date controlling cases

from this Court and for citing cases following a stricter approach to good faith, which this

Court expressly rejected in McCreesh. Id. at 20 (citing inter alia, McCreesh, 888 A.2d at

674 (rejecting “the rigid compliance of the Teamann line of cases” as inconsistent with

the plain language of Rule 401, the spirit of Lamp and the admonition of Rule 126 to

construe liberally the rules of procedure)).

Ferraro cites Gussom’s burden-shifting framework, which provides that once a

plaintiff establishes that he or she made a good faith effort to comply with Rule 400, the

defendant must show prejudice suffered or an intent to stall the “judicial machinery.” Id.

at 20-21 (citing Gussom, 247 A.3d at 1057). She argues based on the facts of record

[J-54-2023] - 13 that she satisfied her burden of proving that she acted with good faith. She properly

forwarded the Complaint to the Sheriff, and she took action immediately upon realizing

the Sheriff had not served Burger King with the Complaint. She asserts that the record

of private service shows that she engaged in a good faith effort to provide the defendant

with notice of the commencement of the action and also that she had no intention of

stalling the legal machinery. Id. at 20-21. Having met her good faith burden, Ferraro

insists that the burden shifted to Burger King, yet it has failed to meet its burden of proving

that it suffered prejudice.

She distinguishes her case from Farinacci and McCreesh in that those cases

involved the filing of a writ with no further action, whereas here, she filed a Complaint and

undertook a genuine effort to serve Burger King with it. Id. at 21-22. In sum, Ferraro

advances two errors in Burger King’s argument: first, that it is attempting to create a higher

standard not supported by the case law “impos[ing] an ongoing duty to continually follow

up and check” to establish good faith; second, that Burger King’s claim of prejudice is

unsupported by the record. Id. at 22-23.

Ferraro defends the lower courts’ decisions as consistent with the law and accuses

Burger King of misstating or misconstruing the controlling case law to require continuous

monitoring for proper service and exhausting every option for service. Id. at 23-25. She

calls Burger King’s reliance of Englert “telling,” as it pre-dated Gussom by fifteen years

and involves materially distinguishable facts. Id. at 25. Concluding, Ferraro contends

that she made a good faith attempt at service and thus, “the statute of limitations was

tolled” pursuant to Lamp, Farinacci, McCreesh and Gussom. Id. at 26. In her view, the

lower courts’ decisions follow that line of cases and their rejection of a stricter rule. Id. at

25.

[J-54-2023] - 14 Burger King’s Reply

In reply, Burger King contests many of Ferraro’s factual allegations, which it views

as indicative of her failure to act in good faith. For instance, Burger King disputes that it

had timely actual notice of the lawsuit, as service was made sixty-three days after filing

of the original Complaint, and the Complaint was not reinstated until months after that.

Burger King’s position is that the private process server was serving a Complaint that was

dead on arrival, as it was served more than thirty days after it was filed. Reply Brief at 3-

4. Moreover, Burger King notes that original service by a sheriff is required under Rule

400, and it would draw meaning from the fact that the rule does not permit service by any

competent adult. Id. at 4-5.

Burger King continues to argue that it does not have to show prejudice unless

Ferraro meets her burden to prove a good faith effort, just like it would not have to

demonstrate prejudice if it were seeking dismissal of a lawsuit where a complaint is filed

after the statute of limitations. Id. at 6-10. It maintains that this is the sensible order of

operations and Ferraro’s contrary protocol would require too much of a defendant.

Namely, under Ferraro’s approach, defendants would have to produce evidence to

support dismissal of untimely complaints, and dismissal would only be granted following

timely and expensive discovery and a motion for summary judgment. According to Burger

King, this would turn the purpose of the statute of limitations and the Rules of Civil

Procedure on their heads. Id. at 9.14

Finally, Burger King disputes Ferraro’s reliance on the early 2020 COVID-19

pandemic closures as an excuse for lack of diligence, as the Butler County Sheriff did not

14 Burger King also argues that approving of the defective service in this case would erode the requirements for timely and proper service as it has uncovered other instances in which Ferraro’s counsel has utilized private service more recently. Burger King’s Brief at 10-11. That evidence was not considered by the trial court in making its good faith determination, and we do not consider it.

[J-54-2023] - 15 stop process serving during that time. Id. at 12-13. Similarly, it notes that there was no

apparent reason for Ferraro to wait until November to reinstate the Complaint. Id. at 13.

Legal Background

The General Assembly has established that “[a]n action, proceeding or appeal

must be commenced within the time specified in or pursuant to” the Judicial Code. 42

Pa.C.S. § 5501(a). Section 5524 of the Judicial Code specifies two years as the

maximum amount of time for a plaintiff to commence a negligence action.15 A matter is

commenced for the purposes of the statute of limitations “when a document embodying

the matter is filed” in the appropriate office. 42 Pa.C.S. § 5503. Significantly, this Court’s

Rules of Civil Procedure provide:

Rule 1007. Commencement of Action

An action may be commenced by filing with the prothonotary:

(1) a praecipe for a writ of summons, or

(2) a complaint. Pa.R.C.P. 1007.

The predominant purpose of statutes of limitations is to prevent stale claims so

that the defense of such claims is minimally prejudiced, particularly by the destruction or

degradation of evidence. Insurance Co. of North America v. Carnahan, 284 A.2d 728,

729 (Pa. 1971) (providing that “the purpose of any statute of limitations is to expedite

litigation and thus discourage delay and presentation of stale claims which may greatly

prejudice defense of such claims … such statutes are vital to the welfare of society and

are favored in the law”). Consistent with our jurisprudence, the United States Supreme

Court explained that statutes of limitations “are designed to promote justice by preventing

15 42 Pa.C.S. § 5524(2).

[J-54-2023] - 16 surprises through the revival of claims that have been allowed to slumber until evidence

has been lost, memories have faded, and witnesses have disappeared.” Order of R.R.

Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49 (1944).

Whereas the statute of limitations, with its predominant aim to prevent stale claims,

is tolled by commencement of an action by complaint or writ, service of this original

process is a necessary “prerequisite to investing a court with personal jurisdiction over

the defendant.” Lamp, 366 A.2d at 892 (Pomeroy, J., dissenting). “Service of process is

a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules

concerning service of process must be strictly followed.” Cintas Corp. v. Lee’s Cleaning

Services, Inc., 700 A.2d 915, 917-18 (Pa. 1997). Importantly, “without valid service, a

court lacks personal jurisdiction of a defendant and is powerless to enter judgment against

him or her[.]” Id. Validity of service is essential, and failure to perfect service is fatal to a

lawsuit.

We have also recognized that service of process and our rules governing how

service is accomplished serve a dual purpose. In addition to being a prerequisite to

investing a court with personal jurisdiction over the defendant, “service of process has as

its purpose notice to the named defendant that he has been brought into court as a party

in a lawsuit and must take appropriate steps in defense. Unless he has validly waived

notice, anyone against whom the heavy hand of litigation is raised is entitled to no less.”

Lamp v. Heyman, 366 A.2d at 484 (Pomeroy, J., dissenting); see also id. at 486 (Roberts,

J., dissenting); McCreesh, 888 A.2d at 674 (defendant must be given notice that action

has been commenced and this Court has adopted rules governing service of process to

ensure such notice).

[J-54-2023] - 17 As relevant to this matter, the manner of service is controlled by Rule 400, which

provides that “original process[16] shall be served within the Commonwealth only by the

sheriff.” Pa.R.C.P. 400(a). Rule 401 prescribes the time for service and identifies the

process to be served:

Rule 401. Time for Service. Reissuance, Reinstatement, and Substitution of Original Process.

(a) Original process shall be served within the Commonwealth within 30 days after the issuance of the writ or the filing of the complaint.

(b)(1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, or a copy thereof, shall continue its validity by designating the writ as reissued or the complaint as reinstated.

(2) A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint only if the writ or complaint has not been served on any defendant.

(3) A substituted writ may be issued or a substituted complaint filed upon praecipe stating that the former writ or complaint has been lost or destroyed.

(4) A reissued, reinstated, or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule or by Rule 404 after reissuance, reinstatement, or substitution.

(5) If an action is commenced by writ of summons and a complaint is thereafter filed, the plaintiff, instead of reissuing the writ, may treat the complaint as alternative original process and as the equivalent for all purposes of a reissued

16 Under our Rules of Civil Procedure, “original process” refers to the filings that qualify for the commencement of an action: a writ of summons or complaint. Service of original process is distinguished from the service of other legal papers. Pa.R.C.P. 440-449.

[J-54-2023] - 18 writ, reissued as of the date of the filing of the complaint. Thereafter the writ may be reissued, or the complaint may be reinstated as the equivalent of a reissuance of the writ, and the plaintiff may use either the reissued writ or the reinstated complaint as alternative original process.

Note: If the applicable time has passed after the issuance of the writ or the filing of the complaint, the writ must be reissued or the complaint reinstated to be effective as process. Filing or reinstatement or substitution of a complaint which is used as alternative process under this subdivision, has been held effective in tolling the statute of limitations as the reissuance or substitution of a writ. Pa.R.C.P. 401 and note.17

Rule 402 describes the manner of service. It requires service of the complaint “by

handing a copy to the defendant” or by handing a copy to a specified adult at the

defendant’s residence or an agent or person in charge at the defendant’s office or place

of business. Pa.R.C.P. 402. Rule 405 requires the Sheriff to file with the Prothonotary a

return of service or a return of no service, Pa.R.C.P. 405(e), and to mail to the party

requesting service a copy of the return filed. Pa.R.C.P. 405(g).

If service cannot be made under the applicable rule, Rule 430 specifically

authorizes a plaintiff to “move the court for a special order directing the method of service.”

Pa.R.C.P. 430(a). According to Rule 430, “[t]he motion shall be accompanied by an

affidavit stating the nature and extent of the investigation which has been made to

determine the whereabouts of the defendant and the reasons why service cannot be

made.” Id.18

17 There have been three amendments to Rule 401(B)(1) since Ferraro commenced this lawsuit, none of which impacts the resolution of this appeal. 18 The note to Rule 430(a) provides, in relevant part:

Note: A sheriff’s return of “not found” or the fact that a defendant has moved without leaving a new forwarding (continued…)

[J-54-2023] - 19 In McCreesh, this Court addressed what constitutes a “good faith effort by a

plaintiff to effectuate notice to a defendant of the commencement of an action.”

McCreesh, 888 A.2d at 665. The facts were as follows: McCreesh suffered a serious

injury when a tree, on property owned by the City of Philadelphia (the “City”), fell on him.

Id. McCreesh commenced the litigation by filing a praecipe to issue a writ days before

the two-year limitation period would run and provided the City with original process by

certified mail the following day and within the statute of limitations. Id. at 666. This

method of service is not envisioned by the applicable Rule for service of process in the

City, which requires process to be served “within the county by the sheriff or a competent

adult.”19 Id. (citing Pa.R.C.P. 400.1). A receptionist at the City Law Department received

the certified mail and signed for the package. Id. at 666. There was no further

correspondence until approximately three months later (i.e., three months beyond the

original statute of limitations period), when McCreesh filed his complaint, requested the

address is insufficient evidence of concealment. Gonzales v. Polis, 357 A.2d 580 (Pa. Super. 1976). …

An illustration of a good faith effort to locate the defendant includes (1) inquiries of postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Part 265, (2) inquiries of relatives, neighbors, friends, and employers of the defendant, (3) examinations of local telephone directories, courthouse records, voter registration records, local tax records, and motor vehicle records, and (4) a reasonable internet search.

Pa.R.C.P. 430(a), note. 19 Relevantly, Rule 400.1 provides that “[i]n an action commenced in the First Judicial District, original process may be served (1) within the county by the sheriff or a competent adult[.]” Pa.R.C.P. 400.1(a)(1). This Court declined to grant review of the Commonwealth Court’s other holding, i.e., whether delivery by certified mail satisfied the requirements for service by hand delivery by a competent adult pursuant to Pa.R.C.P. 400.1 and 402. McCreesh, 888 A.2d at 668 n.9.

[J-54-2023] - 20 writ’s reissuance and served the City properly by hand delivery by a competent adult

pursuant to Rule 400.1. Id. at 666-67. On preliminary objections, the City asserted that

delivery of the writ by certified mail did not comply with Rule 400.1, and that the complaint

was not filed within the two-year limitations period. Id. at 667. McCreesh asserted that

the service was proper, arguing inter alia, that service by certified mail is service by a

competent adult. The trial court denied the City’s preliminary objections, concluding that

the presentation of the writ to the City by certified mail was a good faith effort. The

Commonwealth Court reversed on the basis that McCreesh’s attempt at service did not

strictly comply with Rule 400.1. Id. at 669.

We granted allowance of appeal to address whether the defective service

“constituted a good faith effort to effectuate notice” under our precedent. Id. at 668 n.9.

The McCreesh Court stated that it is self-evident that once an action is commenced, “the

defendant must be provided notice of the action in order for the purpose of the statute of

limitation to be fulfilled.” McCreesh, 888 A.2d at 671. To effectuate the purpose of the

statute of limitations, the McCreesh Court explained, this Court has set forth rules

governing service of process to ensure such notice. Id. (citing Pa.R.C.P. 400-430). We

recounted that Rule 401 requires service of original process within thirty days of the filing

of the complaint or issuance of the writ, and that “the claim remains valid so long as the

plaintiff complies with the procedures of subsection (b), which allows for reissuance of the

writ at ‘any time and any number of times.’” Id. (citing Pa.R.C.P. 401(b)). The McCreesh

Court highlighted that the plain language of the rule allows a plaintiff to commence an

action by filing a complaint, “thereby satisfying the statute of limitations, and yet to delay

the provision of notice of the claim to the defendant interminably, thus undermining the

purpose of the statute of limitations.” Id at 671 (citing Lamp, 366 A.2d at 888-89).

[J-54-2023] - 21 In an effort to curb this practice, the Court developed the “equivalent rule.” The

statute of limitations sets a date certain before which a plaintiff had to file a complaint or

praecipe for a writ of summons. Under the equivalent rule, once the plaintiff has filed a

writ of summons or complaint within the statute of limitations period, the plaintiff has an

additional period of time equivalent to the statute of limitations in which to reissue the writ

or complaint and effectuate service of process. McCreesh, 888 A.2d at 671-72 & n.16

(citing Zarlinsky v. Laudenslager, 167 A.2d 317, 319 (Pa. 1961)). The equivalent rule

imposes “a rule of limitation for the continuing of process to keep alive an action by

analogy to the statute of limitations for the bringing of an action.” Zarlinsky, 167 A.2d at

319.

The equivalent rule was subsequently modified to require a plaintiff to engage in a

good faith effort to effectuate service of process. In 1976, the Lamp Court was concerned

that plaintiffs’ attorneys were customarily filing praecipes for writ of summons to toll the

statute of limitations and then delaying or preventing service upon defendants. Lamp,

366 A.2d at 886. In that case, for instance, the plaintiff filed the praecipe for writ of

summons days before expiration of the statute of limitations, then wrote special

instructions for the prothonotary to “hold” and delay service. We changed the equivalent

rule prospectively to prevent future abuses. Id. We stated that “[o]ur purpose [was] to

avoid the situation in which a plaintiff can bring an action, but, by not making a good faith

effort to notify a defendant, retain exclusive control over it for a period in excess of that

permitted by the statute of limitations.” Id. at 889. The Lamp Court established that going

forward, “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.” Id.

[J-54-2023] - 22 The McCreesh Court observed that Lamp’s holding was “subtly altered” in

Farinacci. McCreesh, 888 A.2d at 672. In Farinacci, plaintiff’s counsel commenced an

action in negligence for personal injuries on the final day to commence such an action by

filing a praecipe for writ of summons. Farinacci, 511 A.2d at 759. Service was not

effectuated within thirty days of issuance of the praecipe. Over a month after the original

statute of limitations run date, the writ was reissued and personal service was made on

all defendants. Id. at 758. In asserting good faith, the plaintiffs in Farinacci relied only on

counsel’s misplacing his file and his faulty memory. We deemed this explanation

inadequate, observing that the plaintiffs failed to provide an explanation for counsel’s

inadvertence to “substantiate a finding that plaintiffs made a good faith effort to effectuate

service of the writ[.]” Id. at 760. Significantly, “plaintiffs are required to comply with local

practice to ensure, insofar as they are able, prompt service of process[.]” Id. at 759.

Therefore, the Farinacci Court affirmed the lower court’s grant of defendants’ preliminary

objections and solidified Lamp’s good faith effort of service of process requirement.

Notably, the McCreesh Court drew attention to the dissent in Farinacci, which

would not have imposed a good faith burden on plaintiffs but instead would have focused

on the reasonableness of the plaintiff’s conduct measured by the plaintiff’s intention to

stall the legal proceedings. Farinacci, 511 A.2d at 760 (Zappala, J., dissenting) (stating

that the Lamp decision “clearly evinces an intention to permit a party to demonstrate that

his actions have not unreasonably stalled the legal proceedings he initiated[]”). The

dissent found that there was no showing of intent to stall the proceedings and that the

defendant was not prejudiced by the delay in proper service because it had been made

aware of plaintiff’s claim for a year before the lawsuit was filed. After drawing attention to

this point, the McCreesh Court distinguished Farinacci on the facts by pointing out that

[J-54-2023] - 23 unlike the case before it, the defendant in Farinacci had notice of the “potential for

litigation” and not “the commencement of litigation.” McCreesh, 888 A.2d at 672 n.17.

The McCreesh Court then recounted that the Court again addressed the Lamp rule

in a plurality decision in Witherspoon. Witherspoon, 768 A.2d at 1079-80 (OAJC). In

Witherspoon, this Court addressed faulty service arising out of a slip and fall incident at

a Philadelphia prison. Well before the statute of limitations ran, Witherspoon’s counsel

informed the City of Philadelphia of the claim, though he waited until the last week of the

statutory period to file a praecipe for a writ of summons. Id. An attempt to serve the writ

was unsuccessful, with the process server failing to file a return of service/return of no

service. Id. at 1080. Then, nearly nine months after the original statute of limitations run

date, Witherspoon’s counsel filed a complaint, which was served promptly. Id. The City

filed preliminary objections asserting that that the failure to serve the writ within thirty days

as required by Pa.R.C.P. 401(a) or reissue it pursuant to Pa.R.C.P. 401(b)(1) “effectively

end[ed] any extension of the two [] year statute of limitations which expired on September

17, 1996.” Id. at 1080.

Five Justices affirmed the trial court’s dismissal of the complaint in Witherspoon,

finding that the plaintiff did not act in good faith where he made only one unsuccessful

attempt to serve the defendant in nine months before he successfully effectuated service.

Witherspoon, 768 A.2d at 1079 (OAJC), id. at 1084 (Saylor, J., concurring). Although five

Justices agreed to the lack of good faith, they could not reach a consensus on the

appropriate test. Justice Zappala, joined by Justice Flaherty, deemed it inherently unfair

to permit the limitation period to be tolled when the defendant is not apprised that he is

subject to liability. Id. at 1083. He compared the matter to Farinacci, recounting that

counsel’s inadvertence led to the lapse of time without service in that case. Farinacci,

511 A.2d at 760. By comparison, the “inadvertence” in Witherspoon which allowed the

[J-54-2023] - 24 lapse of time without service was “attributable to the process server’s failure to make

additional attempts until service was made, his failure to make and file a return of no

service ‘forthwith’ as required by Rules 405(a) and (e), and/or counsel’s failure to promptly

ascertain the results of the process server’s efforts[.]” Witherspoon, 768 A.2d at 1083

(OAJC). Justice Zappala concluded that Witherspoon was bound by the actions of the

private process service just as the plaintiff in Farinacci was bound by counsel’s

inadvertence. Id. “Since the writ was not served within thirty days, the condition

necessary to complete the timely commencement of the action was not fulfilled.” Id.

Significantly, an effort to “reassess the wisdom of the ‘equivalent period’ doctrine,”

was proposed by the OAJC in Witherspoon and rejected by five other Justices. The OAJC

found the equivalent rule to be inconsistent with the plaintiff’s good faith burden and policy

underlying limitations periods. Witherspoon, 768 A.2d at 1084 (OAJC). It would have

adopted a new rule in its place for actions which “straddle the line” of the statute of

limitations period: “the process must be served within the time allowed by the Rules of

Civil Procedure or, if service cannot be made, the process must be immediately and

continually reissued until service is made.” Id. However, neither the three Justices in the

Concurrence nor the two Justices in the Dissent endorsed reevaluation of the equivalent

period doctrine in Witherspoon or adoption of a rule requiring a plaintiff to “immediately

and continuously” reissue process until service is made to toll the applicable period of

limitations. See id. at 1084 (Saylor, J., concurring); id. at 1085-88 (Newman, J.,

dissenting). The Concurrence opined that the failure to prosecute claims diligently would

be better regulated by promulgation of a new rule of civil procedure. It drew attention to

[J-54-2023] - 25 the Federal Rules of Procedure which provide for such a regulation.20 Id. at 1084 (Saylor,

J., concurring).

After reviewing Zarlinsky, Lamp, Farinacci and Witherspoon, the McCreesh Court

observed that the Commonwealth Court and Superior Court had at that time “formulated

inconsistent rules, sometimes dismissing cases due to plaintiffs’ failure to comply strictly

with the Rules of Civil Procedure and on other occasions reserving the drastic measure

of dismissal for only those cases where the defendant has been prejudiced by plaintiff’s

failure to comply with the rules.” McCreesh, 888 A.2d at 673-74 (internal citations

omitted). It concluded that a rigid compliance requirement was “incompatible with the

plain language of Rule 401, the spirt of Lamp, and the admonition of Rule 126 to construe

liberally the rules of procedure so long as the deviation does not affect the substantial

rights of the parties.” Id. at 674. The McCreesh Court observed that the Lamp Court had

sought to alleviate hardships caused by plaintiffs who exploited the rules of civil procedure

by making “an end run around the statute of limitations.” Id. But, according to McCreesh,

neither our cases nor rules contemplate punishing a plaintiff “for technical missteps where

he has satisfied the purpose of the statute of limitations by supplying a defendant with

actual notice.” Id. The inflexible line of cases we were rejecting had required strict

compliance with the Rules of Civil Procedure in a manner reminiscent of “draconian

20 At that time, Rule 4(m) provided:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Fed.R.C.P. 4(m). Rule 4(m) has been amended to require service within 90 days. Id.

[J-54-2023] - 26 procedures” of the past which imposed “an objective bright line standard of compliance

that is wholly inconsistent with the concept of good faith.” Id. Therefore, the Court

embraced the logic of the more flexible lines of cases in our intermediate appellate courts,

which, “applying Lamp, would dismiss only those claims where plaintiffs have

demonstrated an intent to stall the judicial machinery or where plaintiffs’ failure to comply

with the Rules of Civil Procedure has prejudiced the defendant.” Id.21 The Court noted

that “there may be situations where actual notice may not be absolutely necessary so

long as prejudice did not result,” but declined to delineate the exception given the issue

was not before the Court. Id. at 674 n.20. We thus reversed the Commonwealth Court

based on the fact that McCreesh “supplied the City with actual notice[,]” and we remanded

to the Commonwealth Court to address whether the City suffered prejudice as a result of

the delay. Id. While McCreesh emphasized the importance of actual notice to the City,

that fact should not be disengaged from the other facts of record supporting a good faith

effort to comply with the rules of service. Plaintiff argued that his certified mail to the City

was compliant with the Rule requiring service by a competent adult and emphasized the

trial court’s finding that this attempt at service was a good faith effort.

McCreesh focused on disavowing courts of the notion that plaintiff’s counsel was

required to establish absolute technical adherence with the Rules of Civil Procedure, but

it did not relieve plaintiff’s counsel of the burden to make a good faith effort to effectuate

service of process pursuant to the Rules.

McCreesh was not the first case to refer to a “good faith effort to notify a

defendant.” For instance, the Court in Lamp referred to the requirement that a plaintiff

make a “good faith effort to notify a defendant[.]” Lamp, 366 A.2d at 889. Subsequent

21 Notably, in summarizing Lamp, Farinacci, and Witherspoon, the McCreesh Court repeatedly recited the burden borne by the plaintiff to demonstrate “a good-faith effort to effectuate notice of commencement of the action.” McCreesh, 888 A.2d at 671-73.

[J-54-2023] - 27 opinions in Farinacci and Witherspoon used “notice” and “notify” interchangeably with

service of process.22 However, as in McCreesh, each of those cases involved attempts

at service of process as contemplated by the Rules of Civil Procedure and not an effort

by plaintiff to notify a defendant that a lawsuit had been filed, disconnected from an actual

attempt at service of process as provided by the Rules. A contrary reading allowing a

plaintiff to ignore the service rules and give notice to defendant that an action had been

commenced in any manner she chooses undermines a recognized purpose of our service

of process rules to give notice to a defendant and creates uncertainty.

Gussom v. Teagle, 247 A.3d 1046 (Pa. 2021), clarified this Court’s holding in

McCreesh. We recharacterized the inquiry from one requiring a plaintiff to prove a “good

faith effort to effectuate notice[,]” McCreesh, 888 A.2d at 672 (emphasis added), to one

requiring the plaintiff “to prove that she made a good faith effort to effectuate service of

process in a timely manner.” Gussom, 247 A.3d at 1056 (emphasis added).

Following a car accident with a two-year statute of limitations, Gussom filed a

complaint asserting that Teagle’s negligence caused the accident and that she suffered

injuries as a result. Id. at 1049. Within the two-year period, in April 2018, Gussom filed

the complaint, and thereafter, an affidavit of non-service, explaining that she attempted

to serve the complaint on Teagle at an address in Philadelphia but learned that Teagle

had sold the house and moved to Virginia. In August 2018, “nearly a month after the

statute of limitations would have expired but for the filing of the complaint,” Gussom filed

a praecipe to reinstate the complaint. Id. Teagle filed preliminary objections citing, inter

22 See, e.g., Farinacci, 511 A.2d at 759 (referring to plaintiffs’ “good-faith effort to effectuate notice of commencement of the action[]” and “good-faith effort to effectuate notice”); Witherspoon, 768 A.2d at 1083 (OAJC) (referring to standard as requiring determination of whether a “good-faith effort to effectuate notice was made”) (internal citation omitted); id. at 1084 (OAJC) (referring to “good faith attempt to notify the defendant of the action”); id. at 1086 (Newman, J., dissenting) (referring to “good-faith effort to serve the defendant”).

[J-54-2023] - 28 alia, the inadequate service. In response to the preliminary objections, Gussom did not

file a response or attempt to prove that she engaged in a good faith effort to timely serve

the complaint. Rather, Gussom merely filed another praecipe to reinstate her

complaint. Id.

After recounting the line of cases including Lamp, Farinacci, and McCreesh, the

Gussom Majority enunciated the burden-shifting framework:

Lamp and its progeny require a plaintiff to make a good faith effort in diligently and timely serving process on a defendant. When a defendant presents a factual dispute as to whether a plaintiff fulfilled this duty, the plaintiff carries an evidentiary burden to demonstrate that she met her good faith mandate. If a plaintiff presents credible evidence that she made this attempt at service, then she fulfills her requirement to prove good faith. If a plaintiff does not present such evidence, then she has failed to satisfy her evidentiary burden, regardless of whether her actions (or inaction) were intentional, unintentional, or otherwise. However, pursuant to McCreesh, a trial court should not punish a plaintiff by dismissing her complaint where she is able to establish that her improper but diligent attempts at service resulted in the defendant receiving actual notice of the commencement of the action, unless the plaintiff’s failure to serve process properly evinced an intent to stall the judicial machinery or otherwise prejudiced the defendant.

Id. at 1057 (emphasis added).

The Majority applied the rule to the facts: Gussom timely commenced the action

by filing a complaint. In meeting the requirement that she act diligently in serving original

process, Gussom filed only an affidavit of non-service in the trial court (which reflected an

unsuccessful attempt at service). The affidavit indicated that she attempted to serve the

complaint at a specific address. She subsequently learned that Teagle had sold the

house at that address a year-and-a-half earlier and moved to Virginia. The docket

reflected that Gussom did nothing else until she filed the praecipe to reinstate the

complaint a month beyond expiration of the original statute of limitations run date. When

[J-54-2023] - 29 Teagle promptly filed preliminary objections raising the question of whether Gussom

fulfilled her legal duty to make a good faith effort to serve the complaint, Gussom “had an

obligation to produce evidence to demonstrate that she met this duty; yet she offered no

such evidence.” Id. at 1057. Based on this record, we found no abuse of discretion in

the dismissal of the complaint. Gussom “failed to prove that she acted diligently in

attempting to make her good faith effort to serve [Teagle] with notice that she filed her

complaint against him.” Id. “Moreover,” there was no evidence that Gussom’s actions or

inactions gave Teagle actual notice of the lawsuit in a timely manner. Id. We also noted

that it was unclear whether Gussom ever properly served her complaint on Teagle. Id. at

1058 n.7. Therefore, we held that “a trial court has the discretion to dismiss a complaint

when a plaintiff fails to offer proof that she diligently attempted to serve process on a

defendant in a timely manner and there is no evidence to indicate that the defendant had

actual notice of the commencement of the action in the relevant time frame, regardless

of whether the plaintiff acted or failed to act intentionally.” Id. at 1048 (emphasis added).

In Dissent, three Justices (including this Author) took a different view of the

precedent. The Dissent interpreted McCreesh as a “significant departure from

Farinacci and Witherspoon[,]” according to which plaintiffs could demonstrate good faith

“through proof of actual notice, however informal or technically deficient[.]” Gussom, 247

A.3d at 1060 (Wecht, J., dissenting). In significant contrast to the Majority, the Dissent

viewed “McCreesh as unmistakably shifting the burden to defendants to affirmatively

demonstrate plaintiffs’ intent to stall the judicial process or prejudice resulting from their

failure to comply with the Rules of Civil Procedure in order to secure dismissal of a civil

action.” Id. According to the Dissent, “plaintiffs’ inadvertent mistakes are no longer

sufficient to warrant dismissal.” Id. Instead, the Dissent read McCreesh as a reversion

to the threshold inquiry established in Lamp: “namely, has the plaintiff ‘refrain[ed] from a

[J-54-2023] - 30 course of conduct which serves to stall in its tracks the legal machinery he has just set in

motion’? Lamp, 366 A.2d 889.” Id. Applying its test to the facts, the Dissent observed

that Gussom made four attempts to effect service of Teagle months prior to expiration of

the statute of limitations.23 Id. at 1060. Further, Teagle’s counsel had entered his

appearance upon receiving notice of the complaint from Teagle’s insurance carrier. Id.

at 1060-61. Though it recognized that sending a complaint to an insurance carrier is

insufficient to effectuate service under the Rules of Civil Procedure, the Dissent saw no

good reason why it would not suffice to establish a plaintiff’s good faith effort to serve the

defendant when it resulted in actual notice to the defendant of the pending litigation. Id.

at 1061. Given that Gussom ultimately made actual service and there was no evidence

of an intent to stall or prejudice to Teagle, the Dissent would have reinstated the

complaint. Id. at 1061. The divergent interpretation of McCreesh espoused by the

Dissent having been rejected, there can be no question that when a plaintiff relies on

actual notice to a defendant that an action has been commenced, that actual notice has

to be the result of a good faith, but improper, effort at service of process under the Rules.

Analysis

Since Zarlinksy, this Court has struggled to find the appropriate balance between,

on the one side of the scale, respect for statutes of limitations and, on the other side of

the scale, monitoring plaintiffs’ conformity with our Rules of Civil Procedure prescribing

how to commence an action, thereby tolling the statute of limitations; how to effectuate

service of process on a defendant thereby conferring the court’s jurisdiction over the

defendant and providing notice to the defendant of the filing of a lawsuit against it; and

23 These facts were presented in Gussom’s motion for reconsideration which the trial court denied, and the Gussom Majority refused to consider. Gussom, 247 A.3d at 1058.

[J-54-2023] - 31 respecting the admonition of Pennsylvania Rule of Civil Procedure 126 24 to construe

liberally the Rules of Civil Procedure so long as the deviation from the Rules does not

affect the substantive rights of the parties. There are certain hard and fast rules. For

example, an action must be commenced prior to the expiration of the statute of limitations;

the statute of limitations is tolled by the timely commencement of an action which is

accomplished by filing a writ or complaint; and service of original process pursuant to the

Rules of Civil Procedure is required to confer the jurisdiction of the court over a defendant.

More problematic has been the development of guidance for what constitutes

acceptable practice for those cases where an action is commenced prior to the expiration

of the statute of limitations but service of process is not effectuated until a point in time

after the statute of limitations would have expired but for the tolling that occurred because

a writ or complaint was filed. This is important because absent notice to the defendant

that an action has been filed, the plaintiff effectively extends the statute of limitations by

maintaining exclusive control over the lawsuit as a defendant cannot garner a defense to

an unknown action. Our case law has consistently recognized, from Lamp, through

McCreesh, that one purpose of our service of process rules is to ensure that a defendant

is put on notice that a lawsuit has been filed so that a defense can be mounted. Of course,

this is the most obvious consequence of service of original process, even though it is

likewise essential to attach a court’s personal jurisdiction over the defendant. More

24 Rule 126(a) provides:

Application. The Rules shall be liberally applied to secure the just, speedy, and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantive rights of the parties.

[J-54-2023] - 32 pointedly, other than formal waiver of service of process,25 our Rules of Civil Procedure

do not provide for an alternative method of notifying a defendant of the commencement

of an action.

The rules governing service of process are straightforward, but our case law shows

that following their dictates is apparently less so. Although not totally smooth in

development, and always with divided courts, we have rejected strict compliance with the

Pennsylvania Rules of Civil Procedure related to service of process and settled on

imposing on a plaintiff the standard of a good faith effort to effectuate service of process

in the critical time frame.

Gussom is our most recent case addressing the confluence of an effective tolling

of the statute of limitations and the failure to effectuate service of process until after the

date the statute of limitations would have expired absent the commencement of the

action. Gussom coalesced the teachings of our prior case law in this area, including

McCreesh which, as discussed, hinged on the fact that the defendant received timely

actual notice of the lawsuit even though it received such notice through a good faith

attempt at service of process in a manner not authorized under our Rules.

In sum, Lamp and its progeny require a plaintiff to make a good faith effort in diligently and timely serving process on a defendant. When a defendant presents a factual dispute as to whether a plaintiff fulfilled this duty, the plaintiff carries an evidentiary burden to demonstrate that she met her good faith mandate. If plaintiff presents credible evidence that she met this attempt at service, then she fulfills her requirement to prove good faith. If plaintiff does not present such evidence, then she has failed to satisfy her evidentiary burden, regardless of whether the actions (or inaction) were intentional, unintentional, or otherwise. However, pursuant to McCreesh, a trial court should not punish a plaintiff by

25 According to Rule 402(b), “[i]n lieu of service under this rule, the defendant or his authorized agent may accept service of original process by filing a separate document which shall be substantially in” the form provided. Pa.R.C.P. 402(b).

[J-54-2023] - 33 dismissing her complaint where she is able to establish that her improper but diligent attempts at service resulted in the defendant receiving actual notice of the commencement of the action, unless the plaintiff’s failure to serve process properly evinced an intent to stall the judicial machinery or otherwise prejudiced the defendant.

Gussom, 247 A.3d at 1057.

We apply the Gussom analytical framework to the undisputed facts of this appeal

which we again summarize. Ferraro effectively tolled the August 26, 2020 statute of

limitations in her negligence action against Burger King by filing a complaint in the Court

of Common Pleas of Butler County on March 4, 2020. Immediately after commencing the

action, she made one attempt at service of process pursuant to Rule 400. Cognizant that

this attempt at service failed, in May 2020, Ferraro had a private process server hand

deliver a copy of the original Complaint to Burger King. Ferraro’s counsel candidly admits

that this was not an attempt to effectuate service of process. Instead, he wanted to notify

the defendant that a lawsuit has been filed. Ferraro made no attempt to effectuate service

of process until November 3, 2020 (sixty-nine days after the statute of limitations would

have expired but for the filing of the original Complaint) when she reinstated the

Complaint. She then instructed the Sheriff to effectuate service on Burger King, which

was accomplished on November 30, 2020.

Burger King challenged Ferraro’s good faith effort to diligently and timely serve

process on it, thus triggering plaintiff’s evidentiary burden to demonstrate that she met

her good faith mandate. Ferraro first posits that her initial instruction to the Sheriff is

sufficient to establish her good faith effort to effectuate service of process on the

defendant. In her view, even if she knew the attempt at service failed, her use of the

private process server to follow up and give notice evidences that she did not intend to

stall the litigation. Ferraro’s Brief at 20-21. We reiterate that the good faith effort is to

diligently and timely serve process on the defendant. Here, aside from forwarding the

[J-54-2023] - 34 Complaint for service to the Sheriff with payment, Ferraro made no efforts to inquire about

or perfect service until nearly eight months after filing the Complaint and more than two

months after the original date of the statute of limitations. Plaintiff’s inaction in failing to

effectuate service in proximity to the original statute of limitations run date is critical in the

analysis of the good faith in plaintiff’s efforts. Although the statute of limitations is tolled

by the filing of a complaint or writ, the original date that the statute of limitations would

have run is relevant because that is the moment at which the defendant is entitled to

protection against stale claims. Here, that date is August 26, 2020. The vitality of the

original Complaint expired in or around the end of April 2020 (thirty days after the filing of

the Complaint) and no effort was made to reinstate the Complaint prior to August 26,

2020. The Complaint was not reinstated and instructions for service were not reissued

until November 3, 2020 (sixty-nine days after the original statute of limitations expired).

Ferraro produced no evidence to account for the lack of effort to effectuate service during

this time period or for four months preceding it and after the original attempt at service

failed.

As opposed to offering evidence to establish diligence under the circumstances,

Ferraro argued that her Complaint was filed at the outset of the COVID-19 pandemic, a

public health emergency recognized by declarations and orders by the Governor and

orders of this Court. Instead of offering evidence that the Sheriff’s Office was not

effectuating service of process during the time of his attempt at service (and subsequent

to it), Ferraro’s counsel argued that he assumed the pandemic resulted in service of

process failures. Burger King presented docket-based evidence that original process was

being served during the first month of the pandemic (and thus the first month after Ferraro

filed the Complaint), and Burger King produced copies of the pandemic era orders

establishing that none of them impacted this litigation. While it is certainly conceivable

[J-54-2023] - 35 that the uncertainty of normal operations could have impacted the assessment of

Ferraro’s counsel’s diligence during the health emergency, no evidence was offered that

it did.26 Moreover, Ferraro does not distinguish between the uncertainties associated with

normal operations in the immediate declaration of the emergency in March 2020, and

circumstances in August through November 2020. Finally, disfunction in the operations

of the Sheriff’s Office affecting service of process would have been an appropriate basis

for a motion for alternative service of process under Pa.R.C.P. 430.

Under the facts of this case, Ferraro failed to carry her initial burden of

demonstrating that she made a good faith effort to diligently and timely serve process on

Burger King. One effort of service of process prior to the date on which the statute of

limitations would have expired and no further effort until over two months after the

expiration date is the opposite of diligence in timely serving process on the defendant.

The only remaining question is whether Ferraro has established that her improper

but diligent attempts at service resulted in Burger King receiving actual notice of the

commencement of the action prior to the date on which the statute of limitations would

otherwise have barred the lawsuit. Ferraro made one proper but unsuccessful attempt at

service prior to the statute of limitations expiration date. Instead of reinstating the

Complaint and again attempting service through the Sheriff or seeking leave of court to

utilize an alternative method of service, Ferraro’s counsel opted to informally notify Burger

26 The trial court gratuitously suggested that the impact of the COVID-19 pandemic was a consideration in its finding that Ferraro’s actions or inaction met the standard of good faith attempts at service, Trial Court Opinion, 12/28/2021, at 9. Again, there was no evidence of any such impact on this plaintiff’s counsel or the Butler County Sheriff’s Office’s ability to serve original process. Ferraro did not analyze or discuss this Court’s COVID-19 era orders. We take judicial notice that the Court’s mandates effecting operations of the courts expired on June 1, 2020. Even assuming an impact on Ferraro’s case, her counsel took no action to reinstate the Complaint until November 3, 2020—four months later.

[J-54-2023] - 36 King that a lawsuit was filed, having a private process service deliver to Burger King a

copy of the original (unreinstated) Complaint. Ferraro’s counsel admittedly did not intend

that the use of the process server would result in effective service of process. This was

not technical non-compliance with the Rules of Civil Procedure because there was never

an intent to comply with the Rules. We have never held that any notice to a defendant of

the pendency of a lawsuit is a substitute for service of process and we refuse to do so

here.27 Our allowance of a deviation from strict compliance with our service rules when

notice is imparted to the defendant is tied to a good faith effort to comply with the Rules.

In McCreesh, we did not detach notice to the defendant of the pendency of a lawsuit from

service of process. The McCreesh plaintiff incorrectly believed that certified mail to the

defendant would effectuate service of process both in fact and by analogy of certified mail

delivery to service by a competent adult. Here, Ferraro’s counsel understood that the

private process server could not effectuate service of process under the Rule.

As a result of the operation of Rule 126(a), we do not demand strict compliance

with the service of process rules. Gussom clearly announced the balance between the

relaxed enforcement of our rules pertaining to service of process and their purpose of

providing notice to the defendant and the protections intended by statutes of limitations.

When a plaintiff makes diligent but technically improper efforts to timely serve process

whereby a defendant receives actual notice during the period of the statute of limitations

that a lawsuit has been filed against it, the plaintiff will not be punished by dismissal of the

complaint for technical non-compliance with the Rules of Civil Procedure. Gussom, 247

A.3d at 1057. This balance preserves service of process as the manner in which notice

27 Contrary to the Dissenting Justice’s perspective, we are not adding a new or additional inquiry regarding a plaintiff’s good faith effort to effectuate service of process in a timely manner by looking to whether notice to the defendant was done in a way that attempted to comply with the Rules of Civil Procedure. Dissenting Op. at 10. All of our precedents in this area involve failed attempts at notice to defendants by way of methods of service of process established in the Rules. See supra pp. 23, 27-28.

[J-54-2023] - 37 of the commencement of an action is given to a defendant while allowing for leniency

when an imperfect but good faith effort to adhere to the Rules nonetheless results in

actual notice to the defendant. Short of abandoning service of process as the recognized

manner in which notice of being sued in court is given, no other balance is feasible.

Plaintiffs cannot opt out of the Rules to give notice of the commencement of a lawsuit by

informal means. If attempts at service of process are optional for giving such notice, then

no plaintiff would be required to rely on the service of process Rules to impart notice.

Such a result removes the predictability of the Rules which require docketing of service

and service attempts. Removing these formalities does not promote the just, speedy, or

inexpensive determination of actions since notice to a defendant by methods at plaintiff’s

option would foment additional litigation.28

Applying Gussom, the decision of the Superior Court is reversed. Ferraro failed to

meet her burden of demonstrating that she made a good faith effort in diligently and timely

serving process on Burger King and thus, Burger King’s informal receipt of actual notice

is irrelevant.

Chief Justice Todd and Justices Dougherty and Brobson join the opinion.

Justice Wecht files a dissenting opinion in which Justice Mundy joins.

28 Justice Wecht would abandon Gussom and announce a new test for determining whether a plaintiff effectively imparts notice of the commencement of the lawsuit by considering the plaintiff’s diligence, good faith and prejudice to the defendant. Dissenting Op. at 12. Among other things, the new test divorces the concept of notice to the defendant of the commencement of an action from service of process. Id. at 13 (“I would find actual notice regardless of whether it was provided through a misguided attempt at service … or through a known misstep[.]”). This proposition was unsuccessfully espoused by Justice Wecht in his dissent in Gussom, 247 A.3d at 1061 (Wecht, J., dissenting). See supra pp. 30-31. Our current Rules only recognize providing notice to a defendant through specified methods of service of process. Thus, as the Dissent seems to recognize, rule changes would be necessary to accommodate the proposed new test. Dissenting Op. at 12 (echoing a call for the Civil Procedural Rules Committee to examine the Rule). However, under Gussom and our current Rules, this plaintiff cannot prevail.

[J-54-2023] - 38