Witherspoon v. City of Philadelphia

768 A.2d 1079, 564 Pa. 388, 2001 Pa. LEXIS 596

• Court: Supreme Court of Pennsylvania
• Decided: March 26, 2001
• Docket: 15 E.D. 1999
• Status: Published

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

ZAPPALA, Justice

We granted allowance of appeal to consider the extent of the inquiry to be made regarding a plaintiffs efforts to serve process for purposes of determining whether the filing of a writ of summons tolled the limitation period for commencing an action. We find no error in the decisions below and therefore affirm.

John Witherspoon alleges that he injured his foot when he slipped and fell on a loose shower drain at Holmesburg Prison on September 17, 1994. On March 15, 1995, in compliance with 42 Pa.C.S. § 5522, Witherspoon’s counsel notified the City of Philadelphia of his claim. On September 12, 1996, counsel filed a praecipe for writ of summons and the prothonotary scheduled an arbitration hearing for May 14,1997.

An attempt to serve the writ was unsuccessful. However, it appears that the process server did not, at that time, file either a “return of service” or a “return of no service”. The original record contains a form captioned “Affidavit of Service” completed by the process server on April 11, 1997. The first part of the form reads:

I, Joel Rome, on the 11 day of Oct., 1996, did personally serve see below with a copy of the Summons in Civil Action 12:45 P.M. at the above (ADDRESS), pursuant to PA R.C.P. 400.1 relative to service of process for Phila. Cty. I verify that I am over 18 years of age and that the statements of this Return of Service are true, to the best of my knowledge, information and belief, and are made to the provisions of PA.C.S.A. 4904 relating to unsworn statements to authorities.

The second part of the form, which appears immediately below, contains a list of methods of service other than handing a copy of original process to the defendant himself, mirroring Pa.R.C.P. 402(a)(2). As completed by the process server, this section reads:

If service is not made on defendant(s), circle one of the following:

1. ) Adult family member with whom defendant(s) resides. Relationship is__

2. ) Adult in charge of defendant(s) residence, named__(Refused to give name_).

3. ) Officer, manager or clerk in charge of defendant(s) place of business, named_ (Refused to give name

4. ) Manager/clerk of place of lodging in which defen-

dant(s) reside(s), named__(Refused to give name_)

5. ) OTHER: Receptionist stated that parties who normally accept were unavailable__

The form contained in the original record bears a stamp indicating that it was filed by the prothonotary on April 24, 1997. The copy of the form contained in the Appellant’s Reproduced Record, apparently taken from the files either of counsel or of the firm employed to make service, lacks this stamp. However, a barely legible stamp located in a different area of the form seems to indicate: “RECEIVED 97 APR 15 AM 9:01 PRO PROTHY.”

In any event, it appears that based on the title and appearance of the form, upon its filing the prothonotary entered a notation on the docket: “ll-OCT-96 12:45:00 AFFIDAVIT OF SERVICE FILED OF SUMMONS BY PERSONAL SERVICE UPON DEFT. CITY OF PHILA.” The next docket entry, dated “6-MAY-97”, reads: “CORRECTIVE ENTRY. PLEASE NOTE THAT THE AFFIDAVIT OF SERVICE UPON THE CITY OF PHILA. DOCKETED ON OCTOBER 11, 1996 WAS DOCKETED IN ERROR AND SHOULD BE DOCKETED AS ATTEMPTED SERVICE NOT FOUND.”

On May 7, 1997, counsel for Witherspoon filed a complaint, indicating that the action had been commenced by writ of summons on September 12, 1996, and that pursuant to Pa. R.C.P. 401(b)(5) the complaint was to be treated as the equivalent of a reissued writ. The complaint was served on June 3, 1997. The City filed preliminary objections asserting 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 (2) year statute of limitations which expired on September 17, 1996.”

The common pleas court sustained the preliminary objections and ordered the service stricken, effectively terminating Witherspoon’s action on account of the statute of limitations. Citing Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), as imposing “a good faith requirement upon plaintiffs to effect service,” Opinion at 2, R. 21a, the court focused on the fact that Witherspoon made only one unsuccessful attempt to serve the writ of summons between September 1996 and June 1997.

In Commonwealth Court, Witherspoon argued that he should not be faulted for a lack of good faith effort because the reason the writ was not served was the process server’s failure to inquire into the status of the City’s agents for accepting service and his erroneous filing of a return of service. Witherspoon also argued that his incarceration, and the fact that the City was on notice of his intention to file a claim, were factors to be considered.

Commonwealth Court rejected these arguments, relying on Nagy v. Upper Yoder Township, 652 A.2d 428 (Pa.Cmwlth. 1994). In that case, the court stated that lack of good faith could be found even where the plaintiff did not intentionally delay notifying the defendant of the institution of the lawsuit; simple neglect or mistake could support a finding of failure to comply with Lamp. Nagy also held that the notice of intention to file suit against a government unit required by 42 Pa.C.S. § 5522 had no bearing on the inquiry. Such notice does not itself commence an action, and a plaintiff could change his mind and elect not to sue after having given such notice. A government unit having received the initial notice of intention, but not having been served with a writ or complaint within the limitation period, might well be said to have a reasonable expectation that it would not be subject to litigation. Commonwealth Court further held that Witherspoon’s incarceration was of no moment, since he was at all times represented by counsel.

Witherspoon argues in this appeal that the common pleas court erred in failing to conduct a hearing, at which he would have had the opportunity to introduce evidence to meet his burden of showing a good faith effort to notify the City of the commencement of the action. He asserts that he would have been able to demonstrate that the neglect or mistake did not lie completely with him; his process server had attempted to serve the writ but it was not accepted because no authorized agent was present at the Law Department to receive it. Witherspoon also asserts that he had obtained a deferral of a scheduled arbitration hearing due to his incarceration “with no recorded opposition on the part of the City.” Appellant’s Brief at 7. “Where such a waiting period was in effect and the City took no action,” he argues, “it cannot be alleged that the plaintiff has stalled at all.” Id.

The latter argument can be readily dismissed. The application for stay of the arbitration proceeding was filed on May 7, 1997, the same day the complaint was filed. A letter from the assistant city solicitor to Witherspoon’s counsel dated May 6, 1997, which was attached to the application for stay in lieu of a response, indicated that the City “cannot agree to a deferment of the arbitration scheduled for May 14, 1997.” It further advised that the City had no record of being served with the writ of summons, suggested that the process server’s return of service was actually an affidavit of non-service, and stated that the assistant solicitor had “contacted the Prothonotary to clear-up the apparent discrepancy between the docket entries and the filings.”¹ Thus, contrary to Witherspoon’s contention, the stay of the arbitration hearing was not “unopposed” and the City cannot be said to have acquiesced in any delay. Indeed, as Witherspoon’s application for stay of arbitration proceeding acknowledged, the City contested service of the writ even before the complaint was filed.

We next consider Witherspoon’s argument that the common pleas court erred in not conducting a hearing. Because this argument can only succeed if the evidence that would have been produced at such a healing could have affected the outcome, we will accept Witherspoon’s “offer of proof” as true for the sake of argument, examining it in the context of the applicable rule.

Prior to Lamp, and before the adoption of the Rules of Civil Procedure, a rule had developed through case law regarding actions commenced by issuance of a writ of summons that allowed the plaintiff to “continue process to keep his cause of action alive” by reissuing the writ within a period of time equivalent to the statute of limitations applicable to the cause of action. Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317, 319 (1961). The filing of the praecipe within the statute of limitations commenced the action, and reissuance of the writ kept the action alive for another “equivalent period,” whether service was made or even attempted. The purpose of the rule identifying the filing of the praecipe as the commencement of the action, without regard to when the prothonotary actually issued the writ or the sheriff served it, was “to free the plaintiff from the risk that the statute of limitations may bar him if he acts in time, but someone else fails to act in time.” Lamp, 366 A.2d at 887, quoting Salay v. Braun, 427 Pa. 480, 235 A.2d 368, 371 (1967).

Lamp represented a first step toward curbing the potential for abuse inherent in this rule. It had apparently become common for counsel to file a praecipe for writ of summons but instruct the prothonotary not to deliver the writ to the sheriff for service. Acknowledging that this practice was consistent with the letter of the rule stated in Salay but not with its purpose, we disapproved the practice and changed the rule prospectively pursuant to our supervisory power. We stated that in actions instituted after the date of the Lamp decision, “a writ of summons shall remain effective to commence an action only if the plaintiff 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. We further indicated that “a plaintiff should comply with local practice as to delivery of the writ to the sheriff for service.” Id.

A decade later, in Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757, 759 (1986), we stated that “Lamp requires of plaintiffs a good-faith effort to effectuate notice of commencement of the action. Although this good-faith requirement is not apparent from a reading of the rule itself, we interpret the rule mindful of the context in which it was announced.” Id. This context was identified in the next sentence by quoting from Lamp that our purpose there 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.” 366 A.2d at 889.

The facts in Farinacci were that a praecipe for writ of summons was filed on the last day permissible within the statute of limitations. The prothonotary issued the writ the following day, but plaintiffs’ counsel misplaced the file and thus did not request the sheriff to serve the writ or pay for such service. Although the file was found several days later, counsel forgot to take the necessary steps to effectuate service, and the original writ was never served. Approximately one week after the original writ expired, counsel had it reissued and all defendants were served within the next two weeks. We affirmed the common pleas court’s dismissal of the action. We determined that the plaintiffs “failed to provide an explanation for counsel’s inadvertence which could substantiate a finding that plaintiffs made a good-faith effort to effectuate service of the writ.” 511 A.2d at 760.

This case presents yet another fact pattern in which a writ was not served. As indicated in Farinacci, “[I]n each case, where noncompliance with Lamp is alleged, the court must determine in its sound discretion whether a good-faith effort to effectuate notice was made.” Id. at 759 (emphasis added). Accordingly, the court’s decision is reviewed for abuse of discretion.

Like Farinacci, the writ in this case was not served within thirty days as required by Pa.R.C.P. 401(b), and by the time service was made the limitation period had expired. Unlike Farinacci, in this case counsel delivered the writ to a process server, who made an attempt to serve it in timely fashion.² In Farinacci, we found no abuse of discretion in the conclusion that a good-faith effort was lacking where the delay was attributable only to counsel’s inadvertence and faulty memory. In this case, the “inadvertence” which allowed the thirty days to lapse without service having been made is 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. The question may thus be considered as whether the one attempt at service is a sufficient basis to distinguish this case from Farinacci.

To address this question, it is helpful to reflect again on the rationale underlying the Lamp rule, as reiterated and refined in Farinacci. Although an action may be “commenced” by filing a praecipe for writ of summons, until this original process is served the defendant remains unaware that he has been sued. It would be inherent^ unfair, as well as contrary to the purposes of statutes of limitation, to permit the limitation period to be tolled without the defendant being apprised that he might continue to be subject to liability. Thus in Lamp we gave added significance to the link between the praecipe for issuance of the writ and the requirement that the writ be served. In essence, we recognized service, or at least a good faith attempt at service, as a kind of condition subsequent that must be fulfilled to complete the commencement of the action begun by filing the praecipe. In Farvnacci, we pursued the reasoning a step further, finding no distinction between an intentional withholding of service and a lack of service due to counsel’s inadvertence.

We note once again that the general intent of these rules, as stated in Salay, is to allow a plaintiff to commence an action by filing a praecipe even at the very last moment before the limitation period expires and not be penalized because the “official” follow-up activity (issuance of the writ by the prothonotary, service of the writ by the sheriff) is not also completed within the limitation period. Lamp and Farinacci establish that any failure regarding follow-up activity that is attributable to the plaintiff or his agents, rather than public officials, falls outside this purpose. In this case, counsel elected to use a private firm to make service rather than the sheriff. Witherspoon is bound by the actions of these agents (counsel and the process server) in the same way the plaintiff in Farinacci was bound by the actions (or inaction) of his attorney. Since the writ was not served within thirty days, the condition necessary to complete the timely commencement of the action was not fulfilled.

At this juncture, it becomes appropriate to reassess the wisdom of the “equivalent period” doctrine. In light of the changes in practice and in application of the rules beginning with Lamp, we fail to see any justification for the continuation of this common' law doctrine in present circumstances. The notion that an action can be “kept alive” for the same period of time as the applicable limitations period although the defendant has not been made aware of the action, is inherently inconsistent with the requirement that the plaintiff make a good faith attempt to notify the defendant of the action. It is also contrary to the policy underlying limitations periods as a whole, as is particularly evident with respect to causes of action with limitation periods of four, five, and six years or more. See 42 Pa.C.S. § 5525 et seq.

As we have observed in another context,

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.... Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her.... Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of an action against him or her.

Cintas Corp. v. Lee’s Cleaning Services, Inc., 549 Pa. 84, 700 A.2d 915, 917-18 (1997). Given the importance of service of original process in completing the progression of events by which an action is commenced, we deem it necessary that where that progression “straddles the line” of the limitation 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.³ Although Pa.R.C.P. 401(b)(2) states that “[a] writ may be reissued or a complaint reinstated at any time and any number of times” (emphasis added), this cannot be construed to permit the reissuance of a writ or reinstatement of a complaint to “revive” an action as to which the limitation period has expired.

For the foregoing reasons, we conclude that the common pleas court did not abuse its discretion in granting the City’s preliminary objections. Accordingly, we affirm the order of the Commonwealth Court, which affirmed that order.

SAYLOR, J., files a concurring opinion in which CASTILLE and NIGRO, JJ., join. NEWMAN, J., files a dissenting opinion in which CAPPY, J., joins.

1 . We note that the date of the letter containing this statement corresponds to the date of the “corrective entry” in the docket. It would appear that the “return of service” referred to is the affidavit prepared by the process server and filed in April of 1997.

2 . It would appear that the failure to reissue or make additional attempts to serve the writ between October of 1996 and April of 1997 was due to a mistaken belief that service had already been made.

3 . We note that Pa.R.C.P. 430(a) provides: “If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The 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." Subsection (b)(1) details the requirements and form for service by publication. The availability of alternative methods of service as provided in the rules assures that the vigilant plaintiff need not be consigned to an endless cycle of reissuing and attempting personal service.