Gorby, M. v. Hopkins, R.

• Court: Superior Court of Pennsylvania
• Decided: June 7, 2019
• Docket: 1646 WDA 2018
• Status: Unpublished

Opinion

J-S27036-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHELLE GORBY, TIFFANY BEAVER : IN THE SUPERIOR COURT OF AND TENNIEAL NORMAN : PENNSYLVANIA : Appellants : : : v. : : : No. 1646 WDA 2018 ROBERT HOPKINS :

Appeal from the Order Entered October 18, 2018 In the Court of Common Pleas of Washington County Civil Division at No(s): No. 2017-2433

BEFORE: OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED JUNE 7, 2019

This matter is an appeal filed by plaintiffs Michelle Gorby, Tiffany Beaver,

and Tennieal Norman (collectively, Plaintiffs) from an order of the Court of

Common Pleas of Washington County (trial court) granting summary

judgment in favor of the defendant, Robert Hopkins (Defendant), on the

ground that the action was barred by the statute of limitations. For the

reasons set forth below, we affirm.

This personal injury action arose out of a motor vehicle accident that

occurred on Interstate 79 in South Strabane Township, Pennsylvania on May

12, 2015, when Defendant’s car entered the northbound lanes of the

Interstate from the median emergency vehicle turnaround and a car driven

by plaintiff Gorby collided with the rear of Defendant’s car. Plaintiffs Beaver

and Norman were passengers in plaintiff Gorby’s car. Following the accident,

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S27036-19

Plaintiffs, who are West Virginia residents, retained a West Virginia attorney

who negotiated with Defendant’s insurer concerning their claims for damages

from the accident. Plaintiffs did not reach a settlement with Defendant’s

insurer before the two-year statute of limitations1 expired.

On May 12, 2017, the last day within the statute of limitations, Plaintiffs

commenced this action pro se by filing a praecipe for writ of summons, and a

writ of summons was issued that day. Plaintiffs, however, did not deliver the

writ of summons to the sheriff for service and made no attempt to serve

Defendant with the writ or to give Defendant any notice of the writ of

summons before August 2017. Plaintiffs’ Responses to Requests for

Admissions Nos. 2-4. On August 2, 2017, Plaintiffs, represented by

Pennsylvania counsel, filed a praecipe to reissue the writ of summons, and on

August 14, 2017, over three months after the statute of limitations expired,

the sheriff served the writ of summons on Defendant.

On January 18, 2018, Plaintiffs filed their complaint in this action

alleging that Defendant was negligent and seeking damages for injuries that

they claim that they suffered in the accident. In his answer and new matter,

Defendant pled the defense of the statute of limitations. On April 2, 2018,

Defendant moved for summary judgment on the ground that the writ of

summons was ineffective to timely commence the action because Plaintiffs

made no good faith attempt to serve it and that the action was therefore

____________________________________________

1 42 Pa.C.S. § 5524(2).

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barred by the statute of limitations. The trial court granted Plaintiffs

extensions of time to take discovery on the issues raised by the summary

judgment motion, and, before they were required to respond to the motion,

Plaintiffs obtained documents from Defendant’s insurer’s file and took the

depositions of Defendant, Defendant’s wife, and the insurance adjuster who

had negotiated with Plaintiffs’ West Virginia counsel.

On October 18, 2018, the trial court entered an opinion and order

granting Defendant’s motion for summary judgment. The trial court

concluded that the evidence was undisputed that Plaintiffs made no effort to

serve the writ of summons after it was issued on May 12, 2017 and that there

was no evidence that Defendant or his insurer agreed or represented to

Plaintiffs that Plaintiffs did not need to serve the writ. Trial Court Opinion at

2, 4-5, 8-9. The trial court held that under Lamp v. Heyman, 366 A.2d 882

(Pa. 1976), and its progeny, including McCreesh v. City of Philadelphia,

888 A.2d 664 (Pa. 2005), the writ of summons was therefore ineffective to

commence the action before the statute of limitations expired. Id. at 5-9.

This timely appeal followed.2 Our standard of review of the trial court’s grant ____________________________________________

2 Although the trial court’s order did not address a cross-claim that Defendant pled in his answer and new matter against plaintiff Gorby, this appeal is properly before this Court. The only claims asserted in the cross-claim were that plaintiff Gorby was responsible for the injuries to plaintiffs Beaver and Norman and was liable to Defendant for contribution. The cross-claim thus was contingent on the viability of Plaintiffs’ claims in this action and sought no recovery on Defendant’s behalf unless Defendant was held liable to plaintiff Beaver or plaintiff Norman. Because the summary judgment order dismissed

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of summary judgment is de novo and the scope of review is plenary. Pyeritz

v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011).

Plaintiffs present the following issues for our review:

1. Did the trial court err in concluding that the Plaintiffs did not comply with the standards set forth in McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005) in concluding that the “judicial machinery was knowingly delayed” and that the Defendant was prejudiced by the [sic] “the lack of any attempt to serve the writ of summons”?

2. Did the trial court err as a matter of law in failing to find that the Defendant (and his insurer) had actual notice of the commencement of litigation against him by the Plaintiffs?

Appellants’ Br. at 4. Although Plaintiffs state these as two issues, they are

more properly analyzed as arguments with respect to a single issue: whether

the trial court correctly held, under the undisputed facts before it, that

Plaintiffs’ May 12, 2017 praecipe for writ of summons was ineffective to timely

commence their action. Indeed, Plaintiffs discuss both questions in a single,

combined argument section of their brief. Appellants’ Br. at 12-23. We,

accordingly, address Plaintiffs’ issues as part of our consideration of the single

issue before us, whether the trial court correctly held that the praecipe for writ

of summons was ineffective.

An action may be commenced by filing a praecipe for a writ of summons.

Pa.R.C.P. 1007(1). Ordinarily, therefore, it is the date that the plaintiff files

Plaintiffs’ complaint with prejudice, it made the cross-claim moot and therefore disposed of all claims and all parties. Oliver v. Ball, 136 A.3d 162, 166 n.2 (Pa. Super. 2016).

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the praecipe for the writ of summons that determines whether the action is

time-barred, not the date when the defendant is served with the writ.

McCreesh, 888 A.2d at 671; Lamp, 366 A.2d at 886. Our Supreme Court,

however, established an exception to that rule in Lamp. Under Lamp and

subsequent Supreme Court decisions applying Lamp, a praecipe for a writ of

summons is ineffective to commence the action and the action is time-barred

if the plaintiff makes no good faith effort to serve the defendant or provide

the writ of summons to the defendant within thirty days or, alternatively, if

the plaintiff’s delay in properly serving the defendant causes prejudice.

McCreesh, 888 A.2d at 672-74; Farinacci v. Beaver County Industrial

Development Authority, 511 A.2d 757, 759-60 (Pa. 1986); Lamp, 366 A.2d

at 888-89.

In Lamp, the Supreme Court concluded that “there is 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.” 366 A.2d at 888. The Supreme Court

accordingly 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.” Id.

at 889. The Court explained that the purpose of this ruling 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

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in excess of that permitted by the statute of limitations.” Id. The Court

further held that in determining whether the plaintiff’s conduct stalled the

judicial machinery, unless local rule provides that the prothonotary delivers

the writ of summons to the sheriff, “the plaintiff shall be responsible for

prompt delivery of the writ to the sheriff for service.” Id.

In Farinacci and McCreesh, the Supreme Court refined the tests and

factors that the courts are to consider in determining whether a praecipe for

a writ of summons is ineffective under Lamp. In Farinacci, the Court held

that under Lamp, the plaintiff must make a good faith effort to give notice of

the commencement of the action to the defendant within thirty days. 511

A.2d at 759. Counsel for the plaintiffs in that case failed to deliver the writ of

summons to the sheriff for service within thirty days because he forgot to do

so and served the defendants approximately a month and one-half after the

statute of limitations expired. Id. at 758-59. The Court ruled that the

plaintiffs did not make a good faith effort to give the defendants notice of the

action and that the action was therefore barred by the statute of limitations,

even though the defendants were aware of the plaintiffs’ claim before the

praecipe for a writ of summons was filed. Id. at 759-60.

In McCreesh, the Court addressed and clarified what constitutes a good

faith effort by the plaintiff to give notice of the action to the defendant under

Lamp and Farinacci. In McCreesh, the plaintiff sent the writ of summons

to the defendant on the day that it was issued by certified mail, and the

defendant received the writ of summons the next day, before the statute of

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limitations expired. 888 A.2d at 666. The plaintiff, however, did not serve

the defendant in accordance with the Rules of Civil Procedure until several

months later, after the statute of limitations expired. Id. at 666-67. The

Court held that failure to attempt to serve the writ in accordance with the

Rules of Civil Procedure did not preclude a finding of good faith effort where

the plaintiff had promptly supplied actual notice of the action by sending the

writ to the defendant. Id. at 674. The Court, accordingly, ruled that where

the plaintiff has timely provided the writ to the defendant, delay in properly

serving the writ bars the action only where that delay prejudiced the

defendant. Id.

The trial court here correctly held that Plaintiffs made no good faith

effort to serve the writ or give notice of the action after the writ of summons

was issued on May 12, 2017 and that this action was therefore barred by the

statute of limitations. It was Plaintiffs’ burden to demonstrate that they made

a good faith effort to serve Defendant or provide him with a copy of the writ.

Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122, 125 (Pa. Super.

2007). They did not submit any evidence that could satisfy that burden.

Instead, the evidence was undisputed that Plaintiffs made no effort

whatsoever to timely serve Defendant or provide a copy of the writ of

summons to Defendant or his insurer.

Plaintiffs admitted that they not deliver the writ to the sheriff before

August 2017 and that they did not make any attempt to serve Defendant with

the writ or notify him of the writ before August 2017. Plaintiffs’ Responses

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Requests for Admissions Nos. 2-4. Plaintiffs submitted no affidavit of their

West Virginia counsel or any other evidence that anyone else attempted to

serve the writ before August 2017 or provided a copy of the writ of summons

to Defendant or his insurer. Indeed, Plaintiffs admit in their brief that there

was no attempt to serve Defendant until August 2017. Appellants’ Br. at 5,

10, 20. This absence of any attempt to serve or provide a copy of the writ to

Defendant establishes lack of good faith effort to give notice of the action as

a matter of law. Farinacci, 511 A.2d at 759-60; Moses v. T.N.T. Red Star

Express, 725 A.2d 792, 796-97 (Pa. Super. 1999).

Plaintiffs do not contend that any disputed issues of fact existed

concerning their lack of effort to serve Defendant or provide a copy of the writ

of summons to him. Instead, they argue that McCreesh does not permit

dismissal of an action for lack of effort to provide the writ to the defendant

unless prejudice is shown and that the action should not be barred because

Defendant and his insurer allegedly had actual notice of the suit in May 2017.

Neither of these arguments has merit.

Contrary to Plaintiffs’ contentions, McCreesh did not eliminate the

requirement that the plaintiff make a good faith effort to provide the writ of

summons to the defendant or require any showing of prejudice where no such

effort is made. The Supreme Court made clear in McCreesh that it was

interpreting “what constitutes a good faith effort by a plaintiff to effectuate

notice to a defendant of the commencement of an action,” not removing that

requirement. 888 A.2d at 665. Although the Court stated in McCreesh that

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claims should be dismissed only “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 defendant,” id. at 674, the Court did

not hold that complete failure to attempt to provide the writ to the defendant

does not constitute an intent to stall the judicial machinery. Rather, the Court

held only that lack of compliance with the technical requirements for service

of process does not constitute an intent to stall the judicial machinery where

the plaintiff has in fact supplied the defendant with actual notice of the action

by promptly sending the writ of summons to the defendant. Id. Accordingly,

it remains the law that inaction by the plaintiff constitutes an “intent to stall

the judicial machinery” that warrants dismissal where the plaintiff makes no

good faith effort to timely serve the defendant and does not timely provide

the writ of summons to the defendant. Englert, 932 A.2d at 125-28.

Plaintiffs’ other argument, that Defendant had actual notice of this

action, is contrary to the record before the trial court. The “actual notice” to

which the Supreme Court referred in McCreesh is the defendant’s receipt of

copy of the writ or complaint commencing the action, not mere notice of the

possibility of litigation or notice that an action is going to be filed or has likely

been filed. McCreesh, 888 A.2d at 669, 672 n.17, 674; Englert, 932 A.2d

at 127. Plaintiffs here showed only that Defendant’s insurer was in settlement

negotiations with their West Virginia counsel concerning their claims before

the statute of limitations expired, that their West Virginia counsel told

Defendant’s insurer on May 9, 2017 that he was going to file a writ of

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summons, that the insurer told Defendant on May 12, 2017 that a writ or

complaint might be served, and that the settlement negotiations did not

terminate until January 2018. Richardson Dep. at 12-16, 26-27, 33-38, 40-

43, 49-50, 52-53; Erie Insurance File Printout at 21, 24; Erie Insurance Letter

to Defendant, 5/12/17. Those facts do not show that Defendant or his insurer

knew in May or June 2017 that this action had in fact been filed, let alone

show that Defendant or his insurer received a copy of the writ of summons

before it was belatedly served in August 2017. To the contrary, the insurance

adjuster testified that he did not receive any copy of the writ until it was served

on Defendant and that he did not know before service of the writ that the

action had been filed. Richardson Dep. at 52.

Because the undisputed evidence established that Plaintiffs made no

good faith effort to give Defendant timely notice of this action after it was

filed, the trial court correctly ruled that Plaintiffs’ May 12, 2017 praecipe for a

writ of summons was ineffective to commence this action and that this action

was barred by the statute of limitations. We therefore affirm the trial court’s

grant of summary judgment in Defendant’s favor.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/7/2019

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