Young v. Pennsylvania Department of Transportation

690 A.2d 1300, 1997 Pa. Commw. LEXIS 162, 1997 WL 109237
CourtCommonwealth Court of Pennsylvania
DecidedMarch 13, 1997
DocketNo. 1619 CD 1996
StatusPublished
Cited by3 cases

This text of 690 A.2d 1300 (Young v. Pennsylvania Department of Transportation) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Young v. Pennsylvania Department of Transportation, 690 A.2d 1300, 1997 Pa. Commw. LEXIS 162, 1997 WL 109237 (Pa. Ct. App. 1997).

Opinion

JIULIANTE, Senior Judge.

Drew W. Young and Teresa Brady-Young (Appellants) appeal an order of the Northampton County Court of Common Pleas granting a motion for summary judgment filed by Appellee David I. Verner. We reverse and remand to the trial court.

Factually, this case arises from a May 9, 1992 ear accident in which Appellant Drew Young sustained personal injuries. A detailed account of the procedural history of the ensuing lawsuit is necessary for a proper analysis of the legal issue before us.

On April 29, 1994, Appellants instituted suit by filing a praecipe for writ of summons against the driver of the vehicle, Appellee Verner, the Department of Transportation, and Allen Township. Along with the prae-cipe, Appellants’ counsel forwarded to the prothonotary’s office the filing fee for the writ, as well as the Northampton County Sheriffs fee and the Lehigh County Sheriffs fee. In an Order for Service Request form, received by the Northampton County Sheriffs Office on May 2,1994, counsel requested service upon Vemer at the address indicated on the police accident report, asking that the Sheriff deputize the Lehigh County Sheriff to serve the writ. A May 4, 1994 attempt to serve Verner was unsuccessful as the Lehigh County Sheriff reported that there was “no such address.”

On May 27,1994, Appellants reinstated the writ, and on June 2, 1994, requested the Sheriff to make service upon Verner at another address, obtained through the Department of Transportation. The Lehigh County Sheriff reported that service could not be made because he was told that Verner had moved. Appellant Drew Young, who was personally acquainted with Verner, knew that this was Vemer’s correct address, and Appellants’ counsel attempted to serve the writ and complaint via certified mail.1 Counsel received the return receipt card signed by Verner’s wife indicating delivery on June 24, 1994.

On July 21, 1994, counsel entered an appearance on behalf of Vemer. By letter dated July 25, 1994, Appellants’ counsel asked Vemer’s counsel to accept service on Verner’s behalf, and provided an acceptance of service form, in accordance with Pa. R.C.P. No. 402(b). Vemer’s counsel did not respond to or even acknowledge the request.

On August 18, 1994, Vemer filed preliminary objections to the Appellants’ complaint, on the grounds of lack of personal jurisdiction. Appellants reinstated the complaint and, on September 29, 1994, personally [1302]*1302served Verner at a third address. Subsequently, on October 19,1994, Verner filed an answer with new matter asserting that Appellants’ claims were barred by the applicable statute of limitations. Verner later filed a motion for summary judgment, arguing that there were no outstanding issues of material fact and that he was entitled to judgment as a matter of law due to Appellants’ failure to make a good faith effort to obtain service upon Verner before the expiration of the statute of limitations.

On January 5, 1996, the trial court issued an order granting the motion for summary judgment. The court concluded that although Appellants’ initial two attempts at service did exhibit good faith efforts to effectuate service as required by the Supreme Court’s decision in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), the subsequent attempt at service by mail, which is not permitted by the Rules of Civil Procedure, did not exhibit good faith. Accordingly, the court granted summary judgment because the action had not been preserved and so service of the complaint after the statute of limitations had expired was ineffective. Appellants’ appeal of this order is now before our Court for review.2

The sole issue before us is whether Appellants made a good faith effort to effectuate service upon Verner, satisfying the requirements of Lamp v. Heyman and its progeny. The scope of our review of an order granting summary judgment is limited to a determination of whether the trial court committed an error of law or clearly abused its discretion. Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Superior Ct. 69, 658 A.2d 428, petition for allowance of appeal denied, 542 Pa. 655, 668 A.2d 1119 (1995).

Under Pa. R.C.P. No. 1007, an action may be commenced by the filing of a prae-cipe for a writ of summons, and such filing may operate to toll the statute of limitations. Lamp. Moreover, pursuant to Pa. R.C.P. No. 401(b) and Lamp, this writ may be reissued at any time within an additional time period equal to the applicable statute of limitations. In the case at bar, Appellants reinstated their complaint3 on September 12, 1994, and served it within thirty days, as required by Pa. R.C.P. No. 401(a), on September 21, 1994. This service was valid. Bigansky; Pa. R.C.P. No. 401(b). Our inquiry, however, does not end here.

The Supreme Court in Lamp limited the rule that a reissued writ could be used to toll the statute of limitations as follows:

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 ... [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, 469 Pa. at 478, 366 A.2d at 889 (footnote omitted). As explained further by the Superior Court, under Lamp “a plaintiffs failure to make a good faith effort to notify the defendant will serve to nullify both the commencement of the action and the tolling of the statue of limitations.” Ferrara v. Hoover, 431 Pa. Superior Ct. 407, 410, 636 A.2d 1151, 1152 (1994). Accordingly, we must determine if Appellants acted in good faith in their attempts to notify Verner of the suit and refrained from a course of conduct serving to stall the legal machinery.

From the legion of cases following and interpreting Lamp, we are able to glean some guidance as to when a plaintiff’s efforts to notify a defendant of the commencement of a lawsuit demonstrate sufficient good faith. We note that when a praecipe is filed but the writ is not served, the burden is on the plaintiff to show that he made a good faith attempt to effectuate service. Feher by Feher v. Altman, 357 Pa. Superior Ct. 50, 515 [1303]*1303A.2d 317 (1986), petition for allowance of appeal denied, 515 Pa. 622, 531 A.2d 430 (1987); Williams v. Southeastern Pennsylvania Transportation Authority, 137 Pa.Cmwlth. 163, 585 A.2d 583 (1991).

A good faith effort to notify a defendant of the institution of a suit is to be assessed on a case-by-ease basis, Leidich v. Franklin, 394 Pa. Superior Ct. 302, 575 A.2d 914, petition for allowance of appeal denied, 526 Pa. 636, 584 A.2d 319 (1990), and there is no mechanical rule to be applied. Rosenberg v. Nicholson, 408 Pa. Superior Ct. 502, 597 A.2d 145 (1991),

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Bluebook (online)
690 A.2d 1300, 1997 Pa. Commw. LEXIS 162, 1997 WL 109237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-pennsylvania-department-of-transportation-pacommwct-1997.