[J-74-2020] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
RHASHEENA GUSSOM, : No. 12 EAP 2020 : Appellant : Appeal from the Judgment of : Superior Court entered on 9/26/2019 : at No. 3245 EDA 2018 affirming the v. : Order entered on 10/3/2018 in the : Court of Common Pleas, : Philadelphia County, Civil Division, MAURICE TEAGLE, : at No. 3821 April Term, 2018. : Appellee : ARGUED: September 16, 2020
OPINION
JUSTICE BAER DECIDED: March 25, 2021 I. Introduction
The Pennsylvania Rules of Civil Procedure (“Rules”) allow a plaintiff to commence
a civil action by filing either a praecipe for a writ of summons or a complaint. Pa.R.C.P.
1007. The Rules require a plaintiff to serve the defendant with original process within 30
days after the issuance of a writ or the filing of a complaint. Pa.R.C.P. 401(a). If the
plaintiff does not effectuate service within that time period, she can praecipe for
reissuance of the writ or reinstatement of the complaint. Pa.R.C.P. 401(b)(1). So long
as the plaintiff files her writ or complaint before the expiration of the statute of limitations
applicable to her cause of action, the original filing, as well as any subsequent
reissuances or reinstatements, tolls the statute of limitations.
“In the seminal case of Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), this Court
sought to end abuses of process by plaintiffs who tolled the statute of limitations by filing
a writ of summons, had the writ repeatedly reissued, and deliberately failed to notify the defendant of the pending litigation.” McCreesh v. City of Philadelphia, 888 A.2d 664, 665
(Pa. 2005). “This process, while technically compliant with the Rules of Civil Procedure,
nonetheless defeated the purpose of the statute of limitations, which is to protect
defendants from stale claims.” Id. Thus, in Lamp, this Court held that “a writ of summons
shall remain effective to commence an action only if the plaintiff then refrains from a
course of conduct which serves to stall in its tracks the legal machinery he has just set in
motion.” Lamp, 366 A.2d at 889. This “Lamp rule” applies equally to actions commenced
by way of the filing of a complaint.
We refined the Lamp rule in Farinacci v. Beaver County Industrial Development
Authority, 511 A.2d 757, 759 (Pa. 1986), holding that “Lamp requires of plaintiffs a good-
faith effort to effectuate notice of commencement of the action.” In addition, Farinacci
clarified that: (1) the plaintiff carries an evidentiary burden of proving that she made a
good-faith effort to ensure that notice of the commencement of an action was served on
the defendant, McCreesh, 888 A.2d at 672; and (2) “[i]n each case, where noncompliance
with Lamp is alleged, the [trial] court must determine in its sound discretion whether a
good-faith effort to effectuate notice was made[,]” Farinacci, 511 A.2d at 759.
This Court’s most recent decision in the Lamp-line of cases is McCreesh, supra.
In McCreesh, the Court expressed that when plaintiffs’ improper actions in serving original
process put defendants on actual notice of the commencement of actions, trial courts
should “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 defendant.” McCreesh, 888 A.2d at 674.
In the present matter, the Superior Court affirmed a trial court order that dismissed
a plaintiff’s complaint based upon the plaintiff’s failure to serve timely her complaint upon
the defendant despite the fact that the plaintiff’s actions did not amount to intentional
conduct. This Court granted allowance of appeal to address whether the Superior Court’s
[J-74-2020] - 2 decision conflicts with Lamp and its progeny. For the reasons that follow, we answer this
question in the negative. More specifically, consistent with the Superior Court’s decision,
we hold 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. Because the Superior Court reached the correct result
in this matter, we affirm that court’s judgment.
II. Background of the current appeal
On July 25, 2016, Appellant Rhasheena Gussom (“Plaintiff”) and Appellee Maurice
Teagle (“Defendant”) were involved in a motor vehicle accident. On April 26, 2018,
Plaintiff filed a complaint against Defendant in the trial court. In her complaint, Plaintiff
claimed that Defendant negligently caused the accident and that she suffered injuries as
a result of the accident. Notably, Plaintiff filed her complaint within the two-year statute
of limitations for negligence actions. See 42 Pa.C.S. § 5524(2) (setting a two-year statute
of limitations for an “action to recover damages for injuries to the person or for the death
of an individual caused by the wrongful act or neglect or unlawful violence or negligence
of another”).
On May 9, 2018, Plaintiff filed an affidavit of non-service in the trial court.
According to the affidavit, on May 4, 2018, Plaintiff attempted to serve the complaint on
Defendant at an address in Philadelphia, but learned from the owners of the home that
Defendant had sold the house a year-and-a-half earlier and moved to Virginia. On August
13, 2018, counsel entered an appearance for Defendant.1 On August 22, 2018, i.e.,
1The record does not reflect what prompted counsel to enter an appearance for Defendant.
[J-74-2020] - 3 nearly a month after the statute of limitations would have expired but for the filing of the
complaint, Plaintiff filed a praecipe to reinstate her complaint.
On September 10, 2018, Defendant filed preliminary objections, claiming, inter
alia, that the trial court should dismiss Plaintiff’s complaint because she failed to serve it
properly. Preliminary Objections, 9/10/2018, at ¶12 (citing Pa.R.C.P. 1028(a)(1)
(permitting a defendant to file a preliminary objection on the ground that the plaintiff
improperly served a complaint)). In support of his objection, Defendant observed that:
(1) “Pennsylvania law demands that Plaintiffs in a civil action, upon filing of original
process, refrain from a course of conduct which serves to stall in its tracks the legal
machinery they have just set into motion[,]” id. at ¶16 (citing, among other cases,
McCreesh, supra); and (2) “[i]t is the plaintiff’s burden to demonstrate that his efforts were
reasonable[,]” id. at ¶19 (citing Bigansky v. Thomas Jefferson University Hosp., 658 A.2d
423, 433 (Pa. Super. 1995)). Defendant acknowledged that Plaintiff attempted to serve
the complaint on May 4, 2018, but he nonetheless averred that “Plaintiff utterly failed to
make any semblance of good-faith efforts” to serve the complaint. Id. at ¶20. Plaintiff did
not file a response to the preliminary objections or otherwise attempt to prove that she
made a good-faith effort to serve the complaint in a timely manner; rather, on September
28, 2018, Plaintiff again filed a praecipe to reinstate her complaint.
On October 3, 2018, the trial court entered an order sustaining Defendant’s
preliminary objection and dismissing Plaintiff’s complaint with prejudice due to her failure
to make good-faith efforts to serve the complaint on Defendant. Plaintiff subsequently
filed a motion asking the trial court to reconsider its order. In that motion, Plaintiff stated
that, on August 22, 2018, she sent the complaint via certified mail to an address in
Virginia, but the mail went unclaimed. Plaintiff further asserted that, after this failed
attempt at service, she believed that she had located Defendant in Philadelphia; she,
therefore, reinstated the complaint on September 28, 2018. Plaintiff explained that her
[J-74-2020] - 4 counsel “inadvertently failed to file a response” to Defendant’s preliminary objections
based upon counsel’s misreading of the objections. Motion for Reconsideration,
10/5/2018, at ¶5. Plaintiff requested that the court reconsider its order dismissing her
complaint because she, in fact, made good-faith efforts to serve the complaint. The trial
court denied Plaintiff’s motion for reconsideration,2 and Plaintiff appealed that order to the
Superior Court.
Plaintiff subsequently filed a concise statement of errors complained of on appeal,
wherein she gave notice that she intended to argue to the Superior Court, inter alia, that
the trial court erred by sustaining Defendant’s preliminary objection on the basis that
Plaintiff failed to make a good-faith effort to serve her complaint on Defendant. In
response, the trial court authored an opinion in support of its order.
In its opinion, the trial court explained that, after a complaint is filed, the statute of
limitations is tolled only if the plaintiff makes a good-faith effort to effectuate service. Trial
Court Opinion, 1/3/2019, at 3 (quoting Englert v. Fazio Mechanical Services, Inc., 932
A.2d 122, 124 (Pa. Super. 2007)). The court further observed that the “Superior Court
has held that unintentional conduct or ‘simple neglect and mistake’ to effect service is
sufficient to demonstrate a plaintiff’s lack of good faith.” Id. (quoting Devine v. Hutt, 863
A.2d 1160, 1168 (Pa. Super. 2004)).
Applying these concepts to the matter sub judice, the trial court observed that
Plaintiff filed her complaint on April 26, 2018, within the prescribed two-year statute of
limitations, and then attempted to serve Defendant in Philadelphia, to no avail, in May of
2018. The court, however, stated that Plaintiff filed nothing else until the August 22, 2018,
when she filed a praecipe to reinstate the complaint, which, the court noted, was two
years and 28 days after the parties’ motor vehicle accident. Id. at 4. The court also
2“A motion for reconsideration is addressed to the sound discretion of the trial court[.]” Moore v. Moore, 634 A.2d 163, 166 (Pa. 1993).
[J-74-2020] - 5 acknowledged that Plaintiff again reinstated her complaint on September 28, 2018, i.e.,
after Defendant filed his preliminary objections; yet, the court highlighted, Plaintiff
provided “no evidence of good faith investigation to locate, or any practical effort to serve,”
Defendant. Id. at 5; see id. (explaining that Plaintiff “did not make any good-faith effort to
locate or serve [Defendant] at any other address in Philadelphia or Virginia prior to the
July 25, 2018, statute of limitations”). The court opined that Plaintiff’s inaction in this
regard evinced an intent to stall the judicial machinery.
In closing, the trial court recounted that Plaintiff failed to respond to Defendant’s
preliminary objections but nonetheless managed to file an additional praecipe to reinstate
her complaint after Defendant filed his objections. The court suggested that the
contradiction between Plaintiff’s failure to respond to the objections and her willingness
to file yet another praecipe to reinstate her complaint, as well as her refusal to “mount a
good faith investigation; make practical efforts at service; or file a Motion for Alternative
service prior to the July 25, 2018 statute of limitations is, at best, inaction, and at worst,
prima facie evidence of bad faith.” Id. at 5. Because the court believed that Plaintiff
wasted her ample opportunities to serve the complaint on Defendant, the court asserted
that it properly sustained Defendant’s preliminary objection and dismissed Plaintiff’s
complaint.3
On appeal, Plaintiff argued that the trial court erred in finding that she failed to
prove that she made a good-faith effort to serve Defendant with the complaint. A majority
of a three-judge panel of the Superior Court disagreed with Plaintiff and affirmed the trial
court’s order in an unpublished memorandum (“Memorandum”). In so doing, the court
stated that a defendant may file a preliminary objection on the basis that the plaintiff failed
3 In addition, the trial court rejected Plaintiff’s claim that it erred by denying her motion for reconsideration. The court noted that, in her motion, Plaintiff failed to offer any new evidence or facts that would have established that she made a good-faith effort to serve the complaint on Defendant before the expiration of the statute of limitations.
[J-74-2020] - 6 to serve the complaint properly. Memorandum at 5 (citing Pa.R.C.P. 1028). The court
explained that, when a defendant lodges such an objection, he must support it with
evidence; after presenting evidence, the burden of proof shifts to the plaintiff. Id. (quoting
Trexler v. McDonald’s Corp., 118 A.3d 408, 412 (Pa. Super. 2015)).
The Superior Court then summarized this Court’s decisions in Lamp and
McCreesh. In the course of providing this summary, the court noted that, in McCreesh,
this Court held that trial courts should “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 defendant.” Memorandum at 6 (quoting
American Interior Const. & Blinds Inc. v. Benjamin’s Desk, LLC, 206 A.3d 509, 513-14
(Pa. Super. 2019)). The court further noted that the burden is on the plaintiff to make a
good-faith effort to effectuate service of a complaint. Id. In addition, the court observed
that: (1) trial courts should assess what constitutes a good-faith effort on a case-by-case
basis, id. at 7 (relying on Englert, 932 A.2d at 124-25); and (2) because Defendant filed
verified preliminary objections on the basis that Plaintiff failed to serve properly her
complaint, “the burden shifted to [Plaintiff] to establish that she made a good faith,
reasonable effort to effectuate service[,]” id. at 8 (citing, inter alia, McCreesh, 888 A.2d at
672).
The Superior Court then recounted the circumstances of the present matter. The
court acknowledged that Plaintiff filed an affidavit of non-service on May 9, 2018, wherein
Plaintiff suggested that Defendant moved to Virginia. Yet, the court reported, the trial
court’s docket reflects no activity by Plaintiff between May 9th and August 22nd of 2018,
when Plaintiff simply filed a praecipe to reinstate her complaint. The court asserted that
Plaintiff did not: (1) identify any good-faith efforts that she made to locate and serve
Defendant in that timeframe; (2) file a motion for alternative service; or (3) file a response
[J-74-2020] - 7 to Defendant’s preliminary objection challenging Defendant’s allegation that Plaintiff failed
to serve properly her complaint.
After summarizing the averments that Plaintiff made in her motion for
reconsideration, the Superior Court stated, “In sum, as the trial court observed, [Plaintiff]
did not allege, let alone provide, any evidence of a good faith investigation to locate, or
any practical efforts to serve, [Defendant].” Memorandum at 9 (internal quotation marks
and citation omitted). Again citing to this Court’s decision in McCreesh, the Superior
Court concluded that, given that Plaintiff carried the burden in the trial court to establish
that she acted in good faith, the trial court did not abuse its discretion by sustaining
Defendant’s preliminary objection for lack of service. Id.
Senior Judge Strassburger authored a dissenting memorandum (“Dissenting
Memorandum”). The dissent took the position that the factual circumstances underlying
this matter do not support the trial court’s decision to dismiss Plaintiff’s complaint.
Dissenting Memorandum at 4. Although the dissent recognized that Plaintiff waited four
months from when she filed the complaint to file her first praecipe to reinstate the
complaint, it opined that “there is no evidence that she did so with ‘an intent to stall the
judicial machinery.’” Id. at 4-5 (quoting McCreesh, supra). The dissent also asserted that
Defendant has not demonstrated that Plaintiff’s conduct prejudiced him. Id. at 5.
The dissent further maintained that the Superior Court majority inappropriately
punished Plaintiff for what amounts to simple neglect. In the dissent’s view, a plaintiff’s
unintentional conduct that delays notice to the defendant does not meet the threshold for
dismissal outlined in Lamp and McCreesh. The dissent ultimately concluded that Plaintiff
“satisfied the statute of limitations by timely filing her complaint, and did not act with an
intent to stall the judicial machinery or prejudice [Defendant].” Id. at 5-6. According to
the dissenting judge, because Plaintiff attempted to serve Defendant with the complaint
three times within two months of filing it, he would have reversed the trial court’s order
[J-74-2020] - 8 sustaining Defendant’s preliminary objections and dismissing Plaintiff’s complaint. Id. at
6.
III. Issue
Plaintiff filed a petition for allowance of appeal, which this Court granted to consider
the following question: “Did the Superior Court err in holding that the Plaintiff did not
make a good-faith effort to serve the Defendant, when the Superior Court’s decision
conflicts with holdings of the Pennsylvania Supreme Court on the same legal issue?”4
Gussom v. Teagle, 228 A.3d 255, 256 (Pa. 2020) (table).
IV. Parties’ arguments
Plaintiff asserts that Lamp holds that a plaintiff must make a good-faith effort to
effectuate notice of the commencement of the action so as to avoid allowing the plaintiff
exclusive control over it for a period in excess of the statute of limitations. Plaintiff
contends, however, that after this Court decided Lamp, panels of the Superior and
Commonwealth Courts took divergent approaches to Lamp’s good-faith requirement.
More specifically, Plaintiff observes that some intermediate court decisions
mandated strict compliance with the Rules of Civil Procedure to satisfy the good-faith
requirement, while other opinions “took a more flexible approach, and excused plaintiff’s
defective service where the defendant has actual notice of the commencement of the
action and is not otherwise prejudiced.” Plaintiff’s Brief at 15. Plaintiff then explains that
this Court granted allowance of appeal in McCreesh to rectify these discrepancies.
Plaintiff notes that, in McCreesh, this Court sided with the intermediate court
decisions that required a good-faith inquiry to satisfy the plain language of Pa.R.C.P. 401,
i.e., the Rule that governs the timing requirements regarding the service of original
4 This issue primarily presents a question of law. “Accordingly, our scope of review is plenary, and our standard of review is de novo.” In re Grand Jury Investigation No. 18, 224 A.3d 326, 332 (Pa. 2020) (footnote omitted).
[J-74-2020] - 9 process.5 In Plaintiff’s view, McCreesh holds that courts should dismiss complaints when
service of process was defective only if 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.” McCreesh, 888 A.2d at 674. Plaintiff, however, suggests that
“this Court has not directly addressed precisely what constitutes a good-faith effort, nor
has the Court delineated what it means for a plaintiff to act with an intent to stall the judicial
machinery.” Plaintiff’s Brief at 16.
5 Rule 401 provides as follows: (a) Original process shall be served within the Commonwealth within 30 days after the issuance of the writ or the filing of the complaint. Note: See Rule 404 for the time for service outside the Commonwealth. (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, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon “reissued” in the case of a writ or “reinstated” in the case of a complaint. (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. (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 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. Pa.R.C.P. 401.
[J-74-2020] - 10 According to Plaintiff, this gap in the law has led to the intermediate courts again
rendering inconsistent decisions regarding the requisites of Rule 401, which, in turn, has
resulted in case law that “insist[s] on a non-mechanical approach to what constitutes
good-faith, but find[s] that neglect or mistake, or any other unintentional conduct on the
part of the plaintiff constitutes a lack of good-faith.” Plaintiff’s Brief at 17 (citing as
examples Englert and Devine, supra); see id. (“The cases of Englert and Devine, serve
to undermine the holdings of the McCreesh court, as they provide for the dismissal of
claims for neglect, or mistake, and require neither a showing of intent to stall the judicial
machinery, nor a showing that the defendant was prejudiced by the improper service.”).
Plaintiff avers that these decisions cannot stand in light of Lamp and its progeny and that,
in affirming the trial court’s order in this matter, the Superior Court erroneously relied upon
Englert and Devine. Indeed, Plaintiff suggests that mistake or other unintentional conduct
cannot rise to the level of the inappropriate intentional behavior contemplated by
McCreesh.
Next, Plaintiff asserts that, when the facts of this case are analyzed under Lamp
and its progeny, it is obvious that she made a good-faith effort to serve her complaint on
Defendant. Plaintiff’s Brief at 19. Plaintiff contends that the standard set forth in
McCreesh is clear: In cases, such as the present matter, “where there is technical
noncompliance with the Rules of Civil Procedure, those technical missteps can be
excused, unless there is a demonstrable ‘intent to stall the judicial machinery’ or actual
prejudice to the defendant.” Id. at 20 (quoting McCreesh, 888 A.2d at 674).
Plaintiff submits that her actions in this case do not evince an intent to stall the
judicial machinery and that those actions did not prejudice Defendant; thus, she acted in
good faith in attempting to serve Defendant. Id. at 22. In support of this position, Plaintiff
recounts the circumstances underlying this matter by relying, in part, on averments that
she made in her motion for reconsideration: (1) she filed her complaint on April 26, 2018;
[J-74-2020] - 11 (2) Plaintiff attempted service in early May of 2018 at Defendant’s last known address in
Philadelphia, but the new owners of the home stated that Defendant had moved to
Virginia; (3) Plaintiff promptly filed an affidavit of non-service and attempted to locate
Defendant in Virginia; (4) on August 22, 2018, Plaintiff believed that she discovered that
Defendant lived in Waynesboro, Virginia, resulting in her filing a praecipe to reinstate the
complaint; (5) the reinstated complaint was served via certified mail to the Virginia
address, but the complaint went unclaimed; (6) after learning that service in Virginia had
failed and believing that she had again located Defendant in Philadelphia, Plaintiff
reinstated the complaint and served it on Defendant’s father on September 29, 2018; and
(7) the affidavit of service was docketed on October 10, 2018. Plaintiff’s Brief at 22-25.
Although Plaintiff concedes that there was a delay between her initial and last attempts
to serve the complaint, she contends that she never intended to stall the judicial
machinery, that Defendant was not prejudiced, and that she, therefore, acted in good
faith.
In response, Defendant argues that it is well-settled law in Pennsylvania that
Plaintiff carried the burden of proving that she made a good-faith effort to effectuate
service of the complaint in a timely manner. Defendant insists that Plaintiff failed to meet
this burden. In support of his argument, Defendant reminds the Court that Plaintiff’s civil
action was subject to a two-year statute of limitations and that the “purpose of any 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.” Defendant’s Brief
at 7 (quoting McCreesh, 888 A.2d at 671). Defendant observes that the statute of
limitations is not satisfied simply when a plaintiff timely files a complaint; rather, “the
defendant must be provided notice of the action in order for the purpose of the statutes
of limitation to be fulfilled.” Id. (quoting McCreesh, 888 A.2d at 671).
[J-74-2020] - 12 Although Defendant acknowledges that the filing of a complaint tolls the statute of
limitations, he highlights that this rule of law benefits a plaintiff only if she makes a good-
faith effort to serve the complaint. Indeed, Defendant notes, Pa.R.C.P. 401(a) dictates
that original process must be served within 30 days after the issuance of a writ or the filing
of a complaint. Id. at 8. Defendant points out that, if a plaintiff fails to complete proper
service, then the court lacks personal jurisdiction over the defendant. Id. (quoting Cintas
Corp. v. Lee’s Cleaning Services, Inc., 700 A.2d 915, 917-18 (Pa. 1997)).
Next, Defendant turns his focus to Lamp and its progeny. According to Defendant,
prior to Lamp, case law developed which allowed a plaintiff to commence an action by
writ of summons and permitted the plaintiff to keep her cause of action alive by reissuing
the writ within a time period equivalent to the statute of limitations applicable to the cause
of action. Id. at 8-9. Defendant explains that, in Lamp, this Court stated that this practice
was susceptible to abuse and that it was inconsistent with the policies underlying statutes
of limitations; thus, the Court qualified the rule, holding 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 9 (quoting Lamp, 366 A.2d at 889). In other words, the Lamp Court required
plaintiffs to attempt to deliver promptly the writ or complaint.
Defendant then recounts in detail a series of decisions that led to this Court’s
holding in McCreesh. Id. at 9-19. Regarding McCreesh itself, Defendant submits that,
therein, the Court “announced a more flexible approach to the good-faith determination,
‘excusing plaintiffs’ initial procedurally defective service where the defendant has actual
notice of the commencement of litigation and is not otherwise prejudiced.’” Id. at 19
(quoting McCreesh, 888 A.2d at 666). Defendant suggests that, “[i]n sum, McCreesh
established a more flexible standard whereby a plaintiff’s case will not be dismissed for
technical missteps where the plaintiff provided the defendants with actual notice of the
[J-74-2020] - 13 commencement of litigation, and the statute of limitations had not yet expired.” Id. at 21-
22.
Defendant further claims that Plaintiff misstates the standard set forth in
McCreesh. More specifically, Defendant submits that, contrary to Plaintiff’s assertions,
“McCreesh does not simply state that technical missteps can be excused - bar none -
unless there is an ‘intent to stall the judicial machinery’ or actual prejudice to the
defendant.” Id. at 22. Indeed, Defendant avers that the Superior Court’s decisions in
cases like Englert appropriately apply McCreesh insomuch as those decisions hold that
the plaintiff’s negligence in fulfilling her service requirements evinced a failure to make a
good-faith effort to effectuate service given that the plaintiff’s misguided effort did not
result in the defendant receiving actual notice of the commencement of the action. Id. at
22-26. Building on this theme, Defendant contends that the Superior Court in the instant
matter properly applied its case law, which complies with McCreesh, in affirming the trial
court’s order.
In closing, Defendant insists that, because he filed a verified preliminary objection
raising improper service, the Superior Court correctly concluded that the burden shifted
to Plaintiff to demonstrate that she made a good-faith effort to serve Defendant in a timely
manner. Id. at 27. As to the Superior Court’s review of the record, Defendant highlights
that the court accurately explained that Plaintiff did not allege, let alone prove, that she
made the requisite effort to serve Defendant with her complaint. Id. at 27-28. Indeed,
identifying that a determination of whether a plaintiff acted in good faith lies in the trial
court’s discretion, Defendant argues that the Superior Court correctly concluded that the
trial court acted well within its discretion by sustaining Defendant’s preliminary objection
[J-74-2020] - 14 and dismissing Plaintiff’s complaint due to her failure to put forth a good-faith effort to
serve that complaint.6 Id. at 30-31.
V. Analysis
Prior to Lamp, a plaintiff could comply with the service requirements of the Rules
of Civil Procedure and simultaneously undermine the purpose of the statute of limitations
by initiating an action via the filing a writ prior to the expiration of the statute of limitations
and continually reissuing that writ after the statute had run, all the while without serving
notice on the defendant that the plaintiff had commenced an action. The Lamp Court
substantially narrowed this avenue for potential abuse by holding 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.” Lamp, 366 A.2d at 889. Stated more in the affirmative, Lamp requires plaintiffs
to act diligently to meet their good-faith requirement to effectuate service of process upon
defendants so as not to dilute the policies underlying the statute of limitations. Id. (“Our
purpose is 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.”).
In Farinacci, this Court aided the bench and bar by further defining the contours of
the Lamp rule. As noted supra, the Farinacci Court clarified that: (1) plaintiffs carry an
evidentiary burden of proving that they made a good-faith effort to ensure that notice of
the commencement of actions was served on defendants, McCreesh, 888 A.2d at 672;
and (2) “[i]n each case, where noncompliance with Lamp is alleged, the [trial] court must
determine in its sound discretion whether a good-faith effort to effectuate notice was
made[,]” Farinacci, 511 A.2d at 759. Importantly, our decision in Farinacci did nothing to
6The Philadelphia Association of Defense Counsel filed an amicus brief in support Defendant.
[J-74-2020] - 15 lessen a plaintiff’s burden to act diligently in promptly serving notice of the
commencement of an action on a defendant so as not to thwart the purpose of the statute
of limitations. Indeed, the Farinacci Court ultimately concluded that the plaintiff therein
failed to establish a good-faith effort to serve a writ where a four-week delay in service
was attributable to counsel’s negligence in forgetting to take the necessary steps to
effectuate service of the writ. Id. at 759-60.
In McCreesh, the Court sought to resolve a pattern of conflicting opinions from the
intermediate courts. On the one hand, some of those decisions required plaintiffs to
comply strictly with the rules regarding service to satisfy the Lamp-Farinacci good-faith
requirement, while, on the other hand, different panels allowed “a more flexible approach,
excusing plaintiffs’ initial procedurally defective service where the defendant has actual
notice of the commencement of litigation and is not otherwise prejudiced[.]” McCreesh,
888 A.2d at 666. After explaining that “[n]either our cases nor our 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[,]” the Court stated that
it embraced the logic of cases which “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 defendant.” McCreesh, 888 A.2d
at 674.
Although McCreesh made clear that a plaintiff could fulfill her good-faith service
mandate without strictly complying with the service rules as long as her efforts resulted in
actual notice of the lawsuit to the defendant, like Farinacci, McCreesh did nothing to
modify a plaintiff’s duty to act diligently to serve notice of the commencement of an action
so as not to undermine the policies that drive the statute of limitations. Nor, for that matter,
did McCreesh change the rule clarified in Farinacci that the plaintiff carries an evidentiary
burden to prove that she made a good-faith effort to effectuate service of process in a
[J-74-2020] - 16 timely manner. To the contrary, as observed throughout this opinion, the McCreesh Court
alluded to this evidentiary requirement. See id. at 672 (“We subtly altered our holding in
Lamp in Farinacci, requiring plaintiffs to demonstrate ‘a good-faith effort to effectuate
notice of commencement of the action.’”).
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 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.
VI. Conclusion
The incident that led to this negligence lawsuit occurred on July 25, 2016, and the
two-year statute of limitations on the cause of action was set to expire on July 24, 2018.
Plaintiff timely commenced the action by filing a complaint on April 26, 2018. As outlined
in detail supra, the law required Plaintiff to act diligently in serving original process on
Defendant so as not to undermine the policies that animate the statute of limitations.
Concerning this requirement, the record reflects that, before the statute of limitations ran,
Plaintiff filed only an affidavit of non-service in the trial court. The affidavit asserted that,
on May 4, 2018, Plaintiff attempted to serve the complaint on Defendant at an address in
[J-74-2020] - 17 Philadelphia but learned from the owners of the home that Defendant had sold the house
a year-and-a-half earlier and moved to Virginia. As the lower courts accurately reported,
the trial court record and docket reflect that Appellant did nothing else until she filed a
praecipe to reinstate the complaint on August 22, 2018.
On September 10, 2018, i.e., nearly seven weeks after the statute of limitations
would have expired on Plaintiff’s claim but for the filing of the complaint, Defendant filed
preliminary objections pursuant to, inter alia, Pa.R.C.P. 1028(a)(1), raising a factual
question as to whether Plaintiff fulfilled her legal duty to make a good-faith effort to serve
her complaint on Defendant. At that point, Plaintiff had an obligation to produce evidence
to demonstrate that she met this duty; yet, she offered no such evidence.
Consequently, on October 3, 2018, the trial court entered an order sustaining
Defendant’s preliminary objection and dismissing Plaintiff’s complaint with prejudice due
to her failure to make good-faith efforts to serve the complaint on Defendant. Like the
Superior Court, we find no abuse of discretion in this decision. Stated succinctly, Plaintiff
failed to prove that she acted diligently in attempting to make her good-faith effort to serve
Defendant with notice that she filed her complaint against him. Moreover, although
Defendant’s counsel entered an appearance on August 13, 2018, i.e., after the statute of
limitations expired, there is no evidence of record that would otherwise establish that
Plaintiff’s actions or inaction gave Defendant actual notice of the lawsuit in a timely
manner.7 Accordingly, the holding in McCreesh is of no assistance to Plaintiff.
7We further observe that it is unclear whether Plaintiff ever properly served her complaint on Defendant. In its opinion, the trial court noted that, on October 10, 2018, Plaintiff filed an affidavit of service and “ultimately serve[d] [Defendant] two (2) years and seventy- seven (77) days after the alleged motor vehicle incident, and six (6) months after filing the Complaint.” Trial Court Opinion, 1/3/2019, at 6. However, in his brief to this Court, Defendant maintains that this attempt at service was improper because it was made at his mother’s residence, not on him or his home. Defendant’s Brief at 41-42. Accordingly, Defendant insists that he never has received proper service of the complaint. Id. at 42.
[J-74-2020] - 18 In closing, we observe that any averments made by Plaintiff in her motion for
reconsideration have no impact on our conclusion in this matter. The trial court exercised
its sound discretion in denying that motion, supra at 5 n.2, and we will not disturb that
determination on appeal. For these reasons, we affirm the Superior Court’s judgment,
which affirmed the trial court’s order sustaining Defendant’s preliminary objection and
dismissing Plaintiff’s complaint with prejudice.
Chief Justice Saylor and Justices Todd and Dougherty join the opinion.
Justice Wecht files a dissenting opinion in which Justices Donohue and
Mundy join.
[J-74-2020] - 19