Schriver v. Mazziotti

638 A.2d 224, 432 Pa. Super. 276, 1994 Pa. Super. LEXIS 188
CourtSuperior Court of Pennsylvania
DecidedFebruary 1, 1994
Docket1102
StatusPublished
Cited by39 cases

This text of 638 A.2d 224 (Schriver v. Mazziotti) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schriver v. Mazziotti, 638 A.2d 224, 432 Pa. Super. 276, 1994 Pa. Super. LEXIS 188 (Pa. Ct. App. 1994).

Opinions

HOFFMAN, Judge:

This is an appeal from the March 1, 1993 order granting appellee’s, Candy Mazziotti, motion for summary judgment. Appellant, Scott Schriver, presents the following issues for our review:

1. Whether the Court of Common Pleas of Berks County, Forrest G. Schaeffer, P.J. erred by entering Summary Judgment on behalf of defendant, where the defendant was the movant and her witnesses did not establish the salient facts upon which the court relied in dismissing plaintiff’s case for failure to demonstrate a good faith effort at having defendant served with a complaint prior to the running of the statute of limitations?
2. Whether the Court of Common Pleas of Berks County, Forrest G. Schaeffer, P.J. erred by granting summary judgment under Lamp v. Heyman under the circumstances of this case?

Appellant’s Brief at 3. For the reasons that follow, we affirm.

On March 14, 1989, a collision occurred between a vehicle driven by appellee and a vehicle in which appellant was a passenger. Appellant allegedly suffered personal injuries as a result of the accident. By letter dated June 18, 1990, appellant’s counsel informed appellee that he had been retained to represent appellant. Appellant’s counsel requested appellee to forward a copy of the letter to her insurance carrier. Appellant’s counsel also by letter dated June 18, 1990 informed appellee’s insurance company, Allstate, advising them of appellant’s desire to recover compensation for his injuries. By letter dated July 10, 1990, a claims representative for Allstate, Michael Spengler, communicated with appellant’s counsel requesting medical information about appellant’s injuries. Communication between appellant’s counsel and Mr. Spengler continued over several months, but no settlement could be agreed upon. By letter dated January 23, 1991, appellant’s counsel informed Allstate that litigation would be [279]*279commenced in the instant action and enclosed a courtesy copy of the complaint.

On January 24, 1991, a complaint was filed with the Berks County’s Prothonotary’s Office. Enclosed with the complaint was the filing fee of $60.50 and the sheriffs service fee of $27.08. It is the local practice in Berks County to require a sheriffs instructions form to be completed to effectuate service. Eleanor Dachowski, of the Berks County Sheriffs Department, testified that she received the copy of appellant’s complaint on January 25, 1991. However, as there was no sheriffs instruction form, she waited several days to see if it would be forwarded. When she did not receive the instructions form, she sent a letter to appellant’s counsel along with a blank sheriffs instruction form on January 29, 1991. On March 21, 1991 the instructions form was received by Ms. Dachowski. Service was attempted by the sheriffs office on March 26, 1991, but could not be completed. Service was finally effected on April 2, 1991, however, the statute of limitations on the action had run out on March 14, 1991. On January 19, 1993, appellee moved for summary judgment, which was granted by order dated March 1,1993. This timely appeal followed.

Appellant first argues that the court erred in granting summary judgment as appellee did not establish the facts upon which the court based its decision granting summary judgment. Specifically, appellant contends that as appellee did not establish that appellant failed to follow the proper procedure for effecting service in Berks County, the court erred in making this determination. We disagree.

Initially, we note that this Court’s scope of review of a grant of summary judgment is plenary. Briggs v. Erie Insurance Group, 406 Pa.Super. 560, 594 A.2d 761 (1991). In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Dorohovich v. West American Insurance Co., 403 Pa.Super. 412, 589 A.2d 252 (1991). All doubts as to the existence of a genuine issue of material fact must be [280]*280resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Moreover, in summary judgment proceedings, it is not the court’s function to determine the facts, but only to determine if an issue of material fact exists. Godlewski v. Pars Manufacturing Co., 408 Pa.Super. 425, 597 A.2d 106 (1991). Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

In the instant case, appellant presented evidence that a complaint was filed with the Berks County’s Prothonotary’s Office and that enclosed with the complaint was the filing fee of $60.50 and the sheriffs service fee of $27.08. However, appellant does. not even allege on appeal that a sheriffs service form was completed and filed along with the complaint in this particular matter.

Plaintiffs are required to make a good faith effort to notify a defendant of a commenced action. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986); Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). The purpose behind this requirement 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.” Lamp, 469 Pa. at 478, 366 A.2d at 899. Thus, the Court in Lamp 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. The Court characterized such unacceptable conduct as follows:

“depending upon the process obtaining in a particular county, this can be accomplished by instructing either the prothonotary or the sheriff to hold the writ, by personally [281]*281retaining the writ and not delivering it to the sheriff for service, or by neglecting to pay the sheriff his fee.”

Id. at 472, 366 A.2d at 866.

A plaintiff will, therefore, fail to satisfy the good faith requirement when he takes affirmative steps to prevent service on a defendant. Gould v. Nazareth Hosp., 354 Pa.Super. 248, 511 A.2d 855 (1986). Additionally, “At a minimum, the good faith effort required in Lamp v. Heyman, supra, mandates compliance with the Pennsylvania Rules of Procedure, and importantly, local practice.” Feher by Feher v. Altman, 357 Pa.Super.

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Bluebook (online)
638 A.2d 224, 432 Pa. Super. 276, 1994 Pa. Super. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schriver-v-mazziotti-pasuperct-1994.