J-A17034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES FEEHAN AND SUSAN ROSEMAN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
ALLSTATE INSURANCE COMPANY AND J.
ROBINSON & SONS, INC.,
Appellees No. 2563 EDA 2013
Appeal from the Order entered August 14, 2013
In the Court of Common Pleas of Bucks County
Civil Division at No: 05-8706-16-1
BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 29, 2015
James Feehan and Susan Roseman (Appellants) commenced a lawsuit
against Allstate Insurance Co. (Allstate) and J. Robinson & Sons Inc.
(Robinson) in 2005, but failed to serve the complaint until 2012, well after
the applicable statutes of limitations ran. Allstate and Robinson filed
preliminary objections arguing Appellants’ failure to do so required dismissal
of the suit under Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), and its
progeny. The trial court sustained the preliminary objections and dismissed
the action with prejudice. We affirm.
On December 12, 2004, fire destroyed Appellants’ property. They
submitted a claim to Allstate (their insurer), which denied the claim the next
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day. Appellants then sued Allstate for breach of contract and bad faith, and
Robinson (their insurance broker) for malpractice.1 Appellants commenced
their action by complaint filed on December 7, 2005. Appellants, however,
did not properly serve the complaint on Allstate or Robinson. Nonetheless,
twenty days later, counsel for Allstate filed a written entry of appearance
with a demand for a trial by a jury of twelve. No attorney entered an
appearance for Robinson. For the next six years, no docket activity
occurred, except in 2008 and 2010, when the county prothonotary mailed
Appellants termination notices. To each notice, counsel filed certificates of
active status to prevent the trial court from sua sponte dismissing the case
for lack of activity.
On January 27, 2012, Appellants’ counsel filed a praecipe to reinstate
the complaint, and a sheriff’s deputy served Allstate and Robinson on
January 31, 2012. Allstate and Robinson filed preliminary objections seeking
dismissal of Appellants’ complaint as barred by the statutes of limitations,
since Appellants did not serve the complaint until long after the statutes of
limitations had expired. The trial court sustained the preliminary objections
and dismissed Appellants’ complaint with prejudice. This appeal followed.
Appellants raise two issues:
____________________________________________
1
Count one of the complaint is for breach of contract against Allstate, count
two is for bad faith against Allstate, and count three is for malpractice
against Robinson.
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1. Whether the trial court erred in granting [Allstate and
Robinson’s] Preliminary Objections based on insufficient
service where [Allstate and Robinson] had notice of
[Appellants’] Complaint within twenty (20) days from the
filing thereof?
2. Whether the trial court erred in granting [Allstate and
Robinson’s] Preliminary Objections based on insufficient
service where [Allstate and Robinson] have failed to establish
prejudice warranting dismissal of [Appellants’] Complaint?
Appellants’ Brief at 3.
Whether a statute of limitations bars a cause of action is generally a
question of law. Devine v. Hutt, 863 A.2d 1160, 1167 (Pa. Super. 2004).
However, we review a trial court’s decision to dismiss a case for
noncompliance with Lamp for an abuse of discretion. Englert v. Fazio
Mech. Servs., Inc., 932 A.2d 122, 124 (Pa. Super. 2007) (quoting
Farinacci v. Beaver County Indus. Dev. Author., 511 A.2d 759 (Pa.
1986)). Whether the plaintiff made good-faith efforts to serve the
defendants must be evaluated on a case-by-case basis. Id. Moreover, the
plaintiff has the burden of showing a good-faith attempt to serve. See
Cahill v. Schults, 643 A.2d 121, 123 (Pa. Super. 1994).
At the outset, Allstate and Robinson improperly raised statutes of
limitations2 defenses by way of preliminary objections. See Pa.R.C.P.
____________________________________________
2
The parties characterize Allstate and Robinson’s preliminary objections as
raising “improper service.” However, Allstate and Robinson were properly
served, albeit in 2012. Rather, the issue is whether Appellants’ failure to
serve the complaint timely and properly negates the tolling of the statute of
limitations under Lamp. “The existence of a statute of limitation which cuts
off a remedy does not constitute a defect in the ‘form of service.’”
(Footnote Continued Next Page)
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1030(a) (requiring that affirmative defenses such as the statute of
limitations be raised in new matter); Devine, 863 A.2d at 1167 (“[A] statute
of limitations affirmative defense cannot be raised in preliminary objections
in the nature of a demurrer, unless the particular statute of limitations is
nonwaivable.”). Appellants, however, failed to file preliminary objections to
the improper raising of the statutes of limitations in preliminary objections,
which waives this procedural error. Richmond v. McHale, 35 A.3d 779,
782-83 (Pa. Super. 2012); DeMary Latrobe Printing & Pub’g Co., 762
A.2d 758, 762 (Pa. Super. 2000) (en banc); see also Lamp, 366 A.2d at
885 (noting plaintiff did not object to defendants’ raising of the statute of
limitations in preliminary objections). Accordingly, the trial court’s scope of
review extended to include a determination of whether the affirmative
defense of the statute of limitations barred the claims of Appellants’
complaint. DeMary, 762 A.2d at 762.
The Lamp rule was intended to “to expedite litigation and thus
discourage delay and the presentation of stale claims which may greatly
prejudice the defense of such claims.” McCreesh v. City of Philadelphia,
888 A.2d 664, 671 (Pa. 2005) (quoting Ins. Co. of N. Am. v. Carnahan,
284 A.2d 728, 729 (Pa. 1971)). It prevents a plaintiff from commencing an
action (which tolls the statute of limitations) and stalling the case by not
_______________________
(Footnote Continued)
Devine, 863 A.2d at 1167 (quoting Farinacci, 511 A.2d at 757) (emphasis
added in Devine).
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notifying the defendant through service of original process. See Lamp, 366
A.2d at 889. Therefore, a writ of summons or complaint “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.
Over the years, our Supreme Court has modified and refined the
Lamp rule several times. In Farinacci, the Court clarified that plaintiffs
must demonstrate “a good-faith effort to effectuate notice of
commencement of the action.” Farinacci, 511 A.2d at 759. The Court
stated that “[t]he purpose for the [Lamp] rule . . . ‘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.’” Id. (quoting Lamp, 366
A.2d at 889) (emphasis added in Farinacci).
Later, in Witherspoon v. City of Philadelphia, 768 A.2d 1079, 1084
(Pa. 2001) (Opinion Announcing the Judgment of the Court), a plurality of
the Court opined that a strict reading of Lamp was necessary.
Consequently, the plurality stated that a plaintiff must “immediately and
continually” reissue a writ or reinstate a complaint if it could not timely serve
process and the statute of limitations had run in the interim. Id. However,
as we noted in Parr v. Roman, 822 A.2d 78 (Pa. Super. 2003), a majority
of the justices in Witherspoon actually rejected the requirement that a
plaintiff must “immediately and continually” reissue an un-served writ to be
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entitled to statute-of-limitations tolling. Id. at 80-81 (noting that the five
justices who wrote or joined the concurring and dissenting opinions rejected
the “immediately and continually” reissue standard). Neither this Court nor
a majority of the Supreme Court adopted the Witherspoon plurality’s
standard. See Sardo v. Smith, 851 A.2d 168, 170 & n.4 (Pa. Super.
2004).
McCreesh represents our Supreme Court’s latest exposition of Lamp.
In McCreesh, our Supreme Court granted review to clarify what constitutes
a good faith effort by a plaintiff to effectuate notice to a defendant of the
commencement of an action under Lamp. The Court addressed two lines of
cases from our intermediate appellate courts interpreting Lamp.
The Superior and Commonwealth Courts have struggled to apply
the Lamp-Farinacci rule, with some panels requiring plaintiffs
to comply strictly with the Rules of Civil Procedure related to
service of process and local practice in order to satisfy the
good[-]faith requirement, see, e.g., Teamann v. Zafris, 811
A.2d 52, 63 (Pa. Cmwlth. 2002), and other panels providing 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,
see, e.g., Leidich v. Franklin, 575 A.2d 914 (Pa. Super. 1990).
We now adopt the more flexible approach, concluding that it
sufficiently protects defendants from defending against stale
claims without the draconian action of dismissing claims based
on technical failings that do not prejudice the defendant.
***
In applying Lamp and its progeny, the Commonwealth and
Superior Courts have formulated inconsistent rules, sometimes
dismissing cases due to plaintiffs’ failure to comply strictly with
the Rules of Civil Procedure and on other occasions reserving the
drastic measure of dismissal for only those cases where the
defendant has been prejudiced by plaintiff’s failure to comply
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with the rules. Compare Teamann, 811 A.2d 52 (Pa. Cmwlth.
2002) (equating “good faith” with strict compliance with the
Rules of Civil Procedure); Green [v. Vinglas], 635 A.2d 1070,
1073 (Pa. Super. 1993) (same); Williams [v. SEPTA], 585 A.2d
583 (Pa. Cmwlth. 1991) (same); Feher [v. Altman], 515 A.2d
317, 319 (Pa. Super. 1986) (same); with Fulco [v. Shaffer],
686 A.2d 1330 [(Pa. Super. 1996)] (refusing to dismiss claims
based on failure to comply with rules where defendant received
actual notice and was not prejudiced); Leidich, 575 A.2d 914
(Pa. Super. 1990) (same); Hoeke [v. Mercy Hosp.], 386 A.2d
71 (Pa. Super. 1978) (same); Big Beaver Falls Area Sch. Dist.
v. Big Beaver Falls Area Educ. Assoc., 492 A.2d 87 ([Pa.
Cmwlth.] 1985) (same); but see Schriver [v. Mazziotti], 638
A.2d [224, 226 (Pa. Super. 1994)] (holding that Lamp requires
compliance but allowing exceptions as in Leidich).
Upon review of these cases, we conclude that the rigid
compliance requirement of the Teamann line of cases is
incompatible with the plain language of [Pa.R.C.P. No.] 401, the
spirit of Lamp, and the admonition of Rule 126 to construe
liberally the rules of procedure so long as the deviation does not
affect the substantial rights of the parties. In Lamp, we sought
to alleviate the hardships caused by plaintiffs who exploited the
rules of civil procedure to make an end run around the statutes
of limitations.
Neither 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. Therefore, we embrace the logic of the Leidich line of
cases, which, applying Lamp, 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.
In setting forth this rule, we are merely re-animating the
purpose of Lamp and reigning [sic] in the line of cases which
have strayed from it. As stated earlier, this Court in Lamp
attempted to prevent plaintiffs from abusing the liberal rules of
civil procedure which had been enacted originally to protect
plaintiffs from being thrown out of court despite commencing an
action within the applicable limitations period. The cases
requiring strict compliance hearken back to these draconian
procedures and replace a factual good[-]faith inquiry with an
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objective bright line standard of compliance that is wholly
inconsistent with the concept of good faith.
McCreesh, 888 A.2d at 666, 673-74 (footnotes and parallel citations
omitted) (emphases added). In short, per McCreesh, a case should not be
dismissed under Lamp where a) there has been a good-faith effort to gain
service, b) there is a technical non-compliance with perfecting service, and
c) the defendant(s) received actual notice of original process, unless the
defendant(s) suffered prejudice as a result of technical noncompliance with
the service rules.
With the above standard in mind, we turn to Appellants’ first
argument. Appellants undisputedly did not serve the complaint upon
Allstate and Robinson until January 27, 2012, the date on which the return
of service indicates the sheriff handed a copy of the complaint to the
defendants at their places of business. Appellants argue the trial court erred
in finding that they made no good-faith effort to provide Allstate and
Robinson with notice of the filing of the complaint.
We first affirm the trial court’s order as it pertains to Robinson.
Counsel’s December 27, 2005 entry of appearance was limited to Allstate.
Appellants therefore concede no evidence shows that Robinson had notice of
the filing of this action until 2012. The trial court did not abuse its discretion
in dismissing this action against Robinson.
Regarding Allstate, Appellants argue that Allstate had actual notice of
the complaint because its counsel entered a written appearance only 20 days
after the complaint was filed. Allstate and Robinson counter that Appellants
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did not attempt to serve the complaint properly until six years after filing.
We view this issue as whether Appellants satisfied their burden of showing a
good-faith attempt to provide service of process upon Allstate. We hold the
trial court did not abuse its discretion in concluding otherwise.
As noted above, the McCreesh Court held that Lamp and the Rules of
Civil Procedure do not 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,” McCreesh, 888 A.2d at 674
(emphasis added). The Court did not define “technical missteps” or
“technical noncompliance,” but McCreesh’s facts are illustrative. McCreesh
filed a praecipe for a writ of summons within the applicable two-year statute
of limitations. Id. at 665. He sent the writ to the City of Philadelphia by
certified mail. The City acknowledged that it received notice when a
receptionist at the City Law Department signed for the package one day
before the statute of limitations ran. Id. Service by certified mail was not
technically proper, as the rules provided for service upon a political
subdivision by the sheriff or a competent adult, and by handing a copy to an
agent duly authorized by the political subdivision to receive service of
process. Id. at 667 & nn.5, 6 (quoting, inter alia, Pa.R.C.P. No. 400.1).
Three months later, McCreesh filed his complaint, requested reissuance of
the writ of summons, and properly served both on the City. Id. The City
filed preliminary objections contesting service of the original writ. McCreesh
maintained that the original writ was served in compliance with the rules,
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arguing that delivery of the writ by a postal worker constituted service by a
competent adult. The Court affirmed the trial court’s finding that the City
had actual notice of the suit and that Appellant had made a good-faith effort
to perfect service. The matter was remanded however, for a factual
determination as to any prejudice suffered by the City. Thus, in McCreesh,
subject to further findings as to prejudice, the rule in Lamp was found not
to have been violated, since McCreesh, in good-faith, attempted service
upon the City, service was only technically noncompliant, and the City had
actual notice of the suit. Cf. Englert, 932 A.2d at 127 (concluding that
notice of possible litigation does not suffice for actual notice under
McCreesh).
In contrast, here there is no evidence that Allstate received technically
noncompliant service, or that Appellants made any good-faith efforts to
effect proper service until more than six years passed from the complaint
filing. Although Allstate’s attorney was evidently aware of the filing of the
complaint, nothing in the record indicates Appellants tried to serve the
complaint in 2005, or that in doing so, committed a good-faith “technical”
misstep to perfect service. In fact, the record is devoid of any explanation
as to how Allstate even came into possession of the complaint. Moreover,
Appellants never sought discovery or requested a hearing to present
evidence of attempts to serve timely the complaint on Allstate. Appellant
could not rely upon Allstate’s entry of appearance in 2005, since Rule of Civil
Procedure 1012(a) expressly provides that an entry of appearance does not
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waive the right to waive any defenses. This of course would include a
defense based upon improper service. We reject Appellants’ argument that
we should “presume” their alleged efforts to be sufficient. No such
presumption exists, for a plaintiff bears the burden of proving sufficient
service. This is not a case where Appellants made a misguided attempt to
serve the complaint, or tried to serve the complaint but failed. Rather, on
the face of the record, it appears Appellants did nothing to attempt to
properly serve Allstate. The trial court did not abuse its discretion in
dismissing Appellants’ action against Allstate. See Englert, supra (finding
no abuse of discretion to dismiss where appellant took no action once writ
was issued to ascertain if service was properly made and instead relied upon
customary practice of waiting for word from sheriff’s office).
We do not think McCreesh is sufficiently elastic to include within
technical noncompliance a total lack of diligence to serve original process.
Were we to construe McCreesh to such an extent the rules relating to
service would be relegated to mere surplusage. Nor does Pa.R.C.P. No. 126
(requiring liberal interpretation of the Rules of Civil Procedure unless a
party’s substantial rights are affected) compel a contrary result. It would be
ironic to invoke Rule 126 to excuse Appellants’ failure to serve original
process, for the purpose of liberally construing the Rules of Civil Procedure is
“to secure the just, speedy and inexpensive determination of every action
or proceeding to which they are applicable.” Pa.R.C.P. No. 126 (emphasis
added). Appellants’ would instead use Rule 126 to countenance delay.
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McCreesh interpreted Lamp liberally to avoid unjust dismissals where
plaintiffs only are in technical noncompliance with the Rules of Civil
Procedure, but make good-faith efforts to serve defendants with original
process. McCreesh does not grant parties carte blanche to disregard
completely the rules regarding service.
In sum, we hold the trial court did not abuse its discretion in
concluding that Appellants did not make a good-faith effort to serve
Robinson and Allstate with their complaint in 2005. Therefore, the filing of
their complaint did not toll the statute of limitations under Lamp and its
progeny. Because Appellants failed to make a good-faith effort at service,
we need not address Appellants’ second issue regarding prejudice.
Accordingly, we affirm the order sustaining Allstate and Robinson’s
preliminary objections and dismissing Appellants’ action with prejudice.
Order affirmed.
President Judge Gantman and Judge Panella concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2015
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