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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
RICKY A. TRIVITT AND APRIL TRIVITT,: IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
v. :
:
LAURA SERFASS, WILLIAM P. :
SERFASS, JR. AND KATHY J. SERFASS, :
:
Appellees : No. 1596 MDA 2014
Appeal from the Order September 3, 2014,
Court of Common Pleas, Adams County,
Civil Division at No. 2013-S-873
BEFORE: BOWES, DONOHUE and ALLEN, JJ.
DISSENTING MEMORANDUM BY DONOHUE, J.: FILED AUGUST 21, 2015
Based upon the evidence of record, in my view, Appellants satisfied
the requirements of McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa.
2005): (1) Ramsay Whitworth, Esquire’s provision of notice to Scott D.
McCarroll, Esquire constituted a good faith effort to notify the defendants of
the filing of the complaint, as he reasonably believed Attorney McCarroll
represented the Serfass family; (2) there is no evidence that the failure to
timely comply with the service requirements of the Rules of Civil Procedure
was done with the intent to stall the judicial machinery; and (3) the
defendants were not prejudiced by the untimely service, as they promptly
began preparing a defense to the claims raised. As I see no basis for
“punishing [the] plaintiff for technical missteps where he has satisfied the
purpose of the statute of limitations,” id. at 674, I respectfully dissent.
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As the Majority recognizes, our Supreme Court in Lamp v. Herman,
366 A.2d 882 (Pa. 1976), put an end to the practice of a plaintiff filing a
praecipe for a writ of summons but intentionally not delivering the writ to
the Sheriff for service to the defendant until after the expiration of the
statute of limitations for the action. Id. at 884. Although this practice
technically complied with the Pennsylvania Rules of Civil Procedure, the
Lamp Court found “that there is too much potential for abuse in a rule which
permits a plaintiff to keep an action alive without proper notice to a
defendant merely by filing a praecipe for a writ of summons and then having
the writ reissued in a timely fashion without attempting to effectuate
service.” Id. at 888. The Court stated the reason behind its decision 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.”
Id. at 889. Thus, the 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.” Id.
A decade later, the Pennsylvania Supreme Court had the opportunity
to review the Lamp decision in Farinacci v. Beaver Cnty. Indus. Dev.
Auth., 511 A.2d 757 (1986). In Farinacci, the Court stated that Lamp
requires that the plaintiff make “a good-faith effort to effectuate notice,”
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which must be determined on a case-by-case basis. Id. at 759. Based on
the facts of that case, the Court found that mere inadvertence by counsel,
without more, did not excuse the plaintiff’s failure to comply with the service
requirements of the Rules of Civil Procedure. Id. at 760.
Most recently, our Supreme Court revisited the Lamp and Farinacci
decisions in McCreesh. In that case, the plaintiff was injured when a tree
growing on the City of Philadelphia’s property fell on his truck while he was
driving. McCreesh, 888 A.2d at 666. He filed a praecipe to issue a writ of
summons within the limitations period and attempted to serve the City by
sending it to the City’s Law Department by certified mail. Id. Three months
passed with no correspondence between the plaintiff and the defendant,
during which time the statute of limitations for the action lapsed. Id.
Thereafter, the plaintiff filed his complaint and requested the reissuance of
the writ, this time properly serving it upon the City’s Law Department
pursuant to Pa.R.C.P. 400.1 and 402. McCreesh, 888 A.2d at 667. The
City filed preliminary objections requesting dismissal of the complaint based
upon improper service during the limitations period. Id.
Our Supreme Court observed that the Lamp/Farinacci decisions had
spawned two divergent lines of interpretation in the intermediate appellate
courts – one demanding strict compliance with the Rules of Civil Procedure
to constitute “a good-faith effort to effectuate notice,” and the other taking
“a more flexible approach” to the good faith requirement. Id. at 666. The
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McCreesh Court adopted the latter line of cases and clarified that the
requirement set forth in Lamp that the plaintiff make “a good-faith effort to
effectuate notice [to the defendant] of commencement of the action” was
met where the defendant had actual notice of the action and was not
prejudiced by the plaintiff’s failure to comply with the service requirements
of the Rules of Civil Procedure. Id. at 674. It based its decision, in part,
upon the “policy considerations that have informed the development of the
law in this area”:
We have long recognized 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.” Insurance Co. of N. Amer. v. Carnahan,
446 Pa. 48, 284 A.2d 728, 729 (1971). To this end,
our legislature has enacted statutes of limitations
that require actions to be “commenced” within
certain time-frames depending on the nature of the
underlying claims. See 42 Pa.C.S. §§ 5522-30. A
matter “is commenced” when a “document
embodying the matter” is filed in the appropriate
office. See id. § 5503. Moreover, the Rules of Civil
Procedure promulgated by this Court pursuant to
Article V, Section 10(c) of the Pennsylvania
Constitution provide that “[a]n action may be
commenced by filing with the prothonotary (1) a
praecipe for a writ of summons, or (2) a complaint.”
See Pa.R.C.P. 1007.
It is self-evident that once the action has been
commenced, the defendant must be provided notice
of the action in order for the purpose of the statutes
of limitation to be fulfilled. Therefore, this Court has
set forth rules governing service of original process
to ensure such notice. See Pa.R.C.P. 400-430.
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McCreesh, 888 A.2d at 671.
As the provision of actual notice to the defendants of the
commencement of an action satisfies the purpose behind the statute of
limitations, the Court found no purpose in dismissing such actions because of
the plaintiff’s “technical missteps” in failing to properly serve the defendant.
Id. at 674. The Court thus held that cases subject to dismissal pursuant to
Lamp/Farinacci should only be dismissed “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.” Id. In so holding, our High Court acknowledged that “actual
notice may not be absolutely necessary so long as prejudice did not result,”
but declined to “delineate such an exception,” as actual notice was provided
to the defendant in the case before it. Id. at 674 n.20. Thus, pursuant to
McCreesh, in order for a court to overlook a plaintiff’s failure to timely
effectuate service as required by the Pennsylvania Rules of Civil Procedure,
(1) the plaintiff must have made a good faith effort to provide notice to the
defendant of the suit (which can, but does not have to, be fulfilled by
providing the defendant with actual notice); (2) the plaintiff must not have
intended to stall the judicial machinery in failing to timely effectuate service;
and (3) and the defendant must not have suffered prejudice because of the
late service.
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The record in the case at bar reflects that Ricky A. Trivitt was allegedly
severely injured while riding his motorcycle when he was struck by a vehicle
driven by Laura Serfass. Amended Complaint, 11/26/13, ¶¶ 14-15. The
Trivitts retained counsel, Attorney Whitworth, who contacted the Serfasses’
liability insurer, Pennsylvania National Mutual Casualty Insurance Company
(“Penn National”). Plaintiff’s Exhibit 1. Penn National retained Attorney
McCarroll “for accident reconstruction only” on July 27, 2011. Defendant’s
Exhibit 13c. At some early point in his representation of Penn National,
Attorney McCarroll’s role “expand[ed] to include obtaining medical records,
information regarding any claimed wage[s] lost, and other general things
that an insurance company would typically investigate pre-suit.”1 N.T.,
6/13/14, at 53.
Attorneys Whitworth and McCarroll exchanged multiple
communications over the succeeding years in the hopes of negotiating a
settlement in the matter, during which Attorney McCarroll obtained pertinent
information concerning the accident, Mr. Trivitt’s injuries, and damages.
See Plaintiff’s Exhibits 4-25. By July 15, 2013, the last day prior to the
expiration of the statute of limitations, no settlement was negotiated, and
Attorney Whitworth filed a complaint on behalf of Appellants sounding in
1
There was no evidence presented at the hearing to document when this
expansion in Attorney McCarroll’s role occurred, but the record reflects that
as early as October 12, 2011, Attorney McCarroll began requesting this
additional information from Attorney Whitworth. See Plaintiff’s Exhibit 4.
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negligence, negligent entrustment and negligent supervision, naming Penn
National’s insureds – William P. Serfass, Jr., Kathy J. Serfass and Laura
Serfass – as defendants. See generally Complaint, 7/15/13.
Attorney Whitworth notified Attorney McCarroll of the filing of the
complaint on the day he filed it. Plaintiff’s Exhibit 26. Attorney Whitworth
testified that he believed that Attorney McCarroll represented Appellees at
that time. N.T., 6/13/14, at 22-23, 28. Attorney Whitworth asked if
Attorney McCarroll would accept service on behalf of the Serfasses, to which
Attorney McCarroll responded, “I will check with my client and let you
know.” Plaintiff’s Exhibit 20. Attorney McCarroll emailed Attorney
Whitworth the following day and informed him that he could not accept
service on behalf of the Serfasses. Id. At no time did Attorney McCarroll
inform Attorney Whitworth that the Serfasses were not his clients.
Shortly thereafter, Attorney McCarroll obtained a copy of the complaint
from the prothonotary, representing that he was doing so as counsel for “the
Serfass family.”2 Plaintiff’s Exhibit 34. Attorney Whitworth also faxed
Attorney McCarroll a copy of the complaint. Plaintiff’s Exhibit 31.
2
When testifying at the hearing, Attorney McCarroll explained that his
secretary drafted this letter at his request, but he did not instruct her to
state that he was acting as counsel for the Serfass family and was unaware
that she included this statement in the letter, as he did not review the letter
prior to its mailing. N.T., 6/13/14, at 64-65. I disagree with the trial court
that Attorney McCarroll’s failure to review the letter prior to its mailing
absolves him from responsibility of its content. See Trial Court Opinion,
9/3/14, at 17 n.7; Pa.R.P.C. 5.3(b) (“a lawyer having direct supervisory
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Attorney McCarroll’s office contacted Appellees prior to the filing of the
complaint. N.T., 6/13/14, at 53. At Attorney McCarroll’s direction, his office
again contacted Appellees the day after the complaint was filed to “give
[them] a heads up that a Sheriff could be showing up at their door to serve
them with legal papers,” and to ensure that Appellees forwarded Attorney
McCarroll a copy of the complaint once the Sheriff served them with it. Id.
at 57, 87. In the months that followed, Attorney McCarroll met with
Appellees in person to discuss their version of the accident and obtained
documentation from them about what occurred. Id. at 67, 102-03, 112;
Plaintiff’s Exhibits 35, 38. On the same day that Mr. and Mrs. Serfass met
with Attorney McCarroll, Mrs. Serfass began searching for personal counsel
to represent Appellees based upon Attorney McCarroll’s advice that they
retain counsel.3 N.T., 6/13/14, at 109; Plaintiff’s Exhibit 36. Appellees
ultimately did retain counsel, informing Attorney McCarroll of the name of
the attorney and the law firm at which he was employed. Plaintiff’s Exhibit
37. Mrs. Serfass requested that Attorney McCarroll collaborate with
authority over the nonlawyer shall make reasonable efforts to ensure that
the person’s conduct is compatible with the professional obligations of the
lawyer”); Commonwealth v. Boring, 684 A.2d 561, 565 n.3 (Pa. Super.
1996).
3
The record reflects that Penn National did not dispute coverage for any of
the claims raised. Appellees conceded this at oral argument. I presume
that Appellees retained separate counsel based upon the original demand of
$10,000,000 made by Appellants, which is far in excess of the coverage
limits under their policy of insurance of $1,250,000. See Plaintiff’s Exhibit
7; Defendant’s Exhibit 6.
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Appellees’ newly retained counsel, adding that she would prefer that the new
attorney not have to review Mr. Trivitt’s medical records, but would rely
upon Attorney McCarroll’s advice as to whether that was “necessary.” Id.
Once the Sheriff served Appellees with the complaint, at the request of Penn
National, Attorney McCarroll entered his appearance as counsel for
Appellees. Defendant’s Exhibit 12a; Entry of Appearance, 11/1/13.
The law is clear that an insured is required to provide prompt notice of
an accident to his or her insurance company, inter alia, to allow the insurer
to defend the insured against claims arising from the accident. Gen. Fin.
Co. v. Pennsylvania Threshermen & Farmers’ Mut. Cas. Ins. Co., 35
A.2d 409, 410 (Pa. 1944). Notice provided by the injured plaintiff to the
defendant’s insurance company is sufficient to fulfill the insured’s obligation.
Nolan v. Koehler & Fretz, Inc., 275 A.2d 681, 682 (Pa. Super. 1971). An
insurance company has a duty to defend its insured (i.e., provide an
attorney to represent the insured) for all claims arising out of an accident for
which there is even the potential for coverage under the policy of insurance
until it is clear that there is no coverage for any recovery sought. Selective
Way Ins. Co. v. Hospitality Grp. Servs., Inc., __ A.3d __, 2015 WL
4094398, **8-9 (Pa. Super. July 7, 2015).
When an insurance company hires a lawyer to defend its insured in a
third party’s action, the attorney-client relationship exists between the
attorney and the insured despite the fact that the insurance company is
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paying the attorney. See Eckman v. Erie Ins. Exch., 21 A.3d 1203, 1209
(Pa. Super. 2011); see also Point Pleasant Canoe Rental, Inc. v.
Tinicum Twp., 110 F.R.D. 166, 170 (E.D. Pa. 1986) (“When a liability
insurer retains a lawyer to defend an insured, the insured is considered the
lawyer’s client.”). The insurance company, however, “control[s] the
defense[.]” Babcock & Wilcox Co. v. Am. Nuclear Insurers, __ A.3d __,
2015 WL 4430352, *10 (Pa. July 21, 2015) (quoting American and
Foreign Ins. Co. v. Jerry’s Sport Center, Inc., 2 A.3d 526, 545 (Pa.
2009)).
In the case at bar, although Attorney McCarroll may not have formally
represented Appellees prior to the effectuation of proper service of the
complaint, the record supports a finding that Attorney Whitworth reasonably
believed that he did.4 Attorney McCarroll’s response to Attorney Whitworth’s
4
Based upon the trial court’s credibility determinations, the record supports
the trial court’s conclusion that Attorney McCarroll was not serving as
counsel for Appellees prior to Attorney Whitworth effectuating proper service
upon Appellees. Trial Court Opinion, 9/3/14, at 15-16; see Capital Care
Corp. v. Hunt, 847 A.2d 75, 84 (Pa. Super. 2004) (indicating that the
question of whether an attorney-client relationship exists is a question of
fact that cannot be disturbed if the evidence of record supports the
factfinder’s conclusion). I note, however, that the record also amply
supports the opposite conclusion. See, e.g., N.T., 6/13/14, at 109;
Plaintiff’s Exhibit 36 (Attorney McCarroll advised Appellees to retain
additional, independent counsel following the filing of the complaint);
Plaintiff’s Exhibit 20 (email from Attorney McCarroll stating that he consulted
his “client” and indicating that he was given authority to reject service of the
complaint); Plaintiff’s Exhibit 37 (email from Mrs. Serfass to Attorney
McCarroll reflecting that Appellees were relying upon Attorney McCarroll’s
advice as to whether their personal counsel needed to review Mr. Trivitt’s
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request that Attorney McCarroll accept service of the complaint on behalf of
the Serfasses was that he would “check with his client.” Plaintiff’s Exhibit
20. Pursuant to Rule 402 of the Pennsylvania Rules of Civil Procedure, only
the Serfasses could authorize Attorney McCarroll to accept service on their
behalf. See Pa.R.C.P. 402(a)(2)(iii) (permitting service to be effectuated by
handing a copy of the complaint to the defendant’s agent).
Furthermore, Penn National had a duty to defend its insured and, as
stated above, it controlled the defense, including who would represent
Appellees. Prior to the filing of the complaint, Attorney McCarroll obtained
from Attorney Whitworth all of the documentation related to the cause of
action and entertained (and rejected) offers to settle the case made by
Attorney Whitworth. Attorney McCarroll never informed Attorney Whitworth
that he did not represent the Serfasses.
medical records); Defendant’s Exhibit 6 (Attorney McCarroll rejected
Appellants’ policy limits demand). Moreover, I disagree with the trial court
that Attorney Whitworth’s act of drafting, but not sending, a letter to
Appellees on July 30, 2013, which letter would have advised Appellees of the
filing of the complaint, but did not indicate that a copy would be sent to
Attorney Whitworth, leads to the “unavoidable conclusion” that Attorney
Whitworth was aware that Attorney McCarroll did not represent Appellees at
that time. See id. at 17; Plaintiff’s Exhibit 29. Attorney Whitworth testified
that although he originally believed he sent the letter to Appellees, he
realized that he did not do so “because they were represented by [Attorney]
McCarroll,” and Attorney Whitworth instead sent a copy of the complaint
directly to Attorney McCarroll. N.T., 6/13/14, at 19, 34. The trial court
states that it “has no reason to question the professional ethics of Attorney
Whitworth,” and therefore could not have found that he lied under oath
while testifying at the hearing. See Trial Court Opinion, 9/3/14, at 17.
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The record also reflects that Attorney Whitworth authored a letter to
the Serfasses on July 30, 2013, informing them that the complaint had been
filed. Plaintiff’s Exhibit 29. He testified, however, that he did not send the
letter because he believed the Serfasses were represented by Attorney
McCarroll and it would have been a violation the Rules of Professional
Conduct to communicate with a represented party. N.T., 6/13/14, at 19,
34; see Pa.R.P.C. 4.2 (“In representing a client, a lawyer shall not
communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized to do so by law
or a court order.”). Attorney Whitworth testified that he instead sent a copy
of the complaint directly to Attorney McCarroll. N.T., 6/13/14, at 34.
It has long been held that “[s]ervice of process is for the purpose of
notifying a defendant of the claim or charge against him so that he may
properly prepare himself to answer it.” Vaughn v. Love, 188 A. 299, 301
(Pa. 1936); see also Lamp, 366 A.2d at 893 (“The purpose of a writ of
summons is twofold: (1) it enables the court to obtain jurisdiction over the
defendant who is served, and (2) it gives the defendant notice that he is
before the court and must prepare to defend an action.”). As the above
summary reflects, following his receipt of the complaint, Attorney McCarroll
began preparing a defense on Appellees’ behalf. Attorney McCarroll
promptly scheduled a meeting with Appellees so that they could relay to him
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their version of the event in question, Appellees provided relevant
documentation to Attorney McCarroll, Attorney McCarroll obtained
documents relevant to the claims made by Mr. Trivitt from Appellants, and
Appellees even retained separate counsel to represent them upon the advice
of Attorney McCarroll. Indeed, by the time he entered his appearance on
Appellees’ behalf, Attorney McCarroll had all of the information he needed to
effectively prepare a defense for Appellees in the lawsuit, as he had
proceeded after the filing of the complaint as though service of the action
had been perfected. There is nothing that would support a finding that
Appellees’ ability to defend themselves in Appellants’ cause of action was in
anyway compromised by Appellants’ failure to timely comply with the service
requirements of the Rules of Civil Procedure.
Thus, as stated above, based upon the evidence of record I would
conclude that Appellants satisfied the requirements of McCreesh: (1)
Attorney Whitworth’s provision of notice to Attorney McCarroll constituted a
good faith effort to notify the defendants of the filing of the complaint, as he
reasonably believed Attorney McCarroll represented the Serfass family; (2)
there is no evidence that the failure to timely comply with the service
requirements of the Rules of Civil Procedure was done with the intent to stall
the judicial machinery; and (3) the defendants were not prejudiced by the
untimely service, as they promptly began preparing a defense to the claims
raised. I therefore see no basis for “punishing [the] plaintiff for technical
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missteps where he has satisfied the purpose of the statute of limitations[.]”
McCreesh, 888 A.2d at 674.
The Majority states that “notice to an insurance company’s lawyer of
the filing of original process is insufficient to toll the statute of limitations
when there has been no good faith effort to serve process on the actual
defendants.” Maj. at 15 (citing Cahill v. Schults, 643 A.2d 121 (Pa. Super.
1994); Schriver v. Mazziotti, 638 A.2d 224 (Pa. Super. 1994); Ferrara v.
Hoover, 636 A.2d 1151, 1153 (Pa. Super. 1994)). My review of the cases
upon which the Majority relies reveals that they do not stand for the stated
proposition. Rather, all three cases address the situation where the plaintiff
provided notice to solely to an insurance adjuster, not an insurance
company’s attorney.5 See Cahill, 643 A.2d at 125; Schriver, 638 A.2d at
5
The cases upon which the Majority relies all pre-date our Supreme Court’s
decision in McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005),
wherein our Supreme Court held that the requirement that the plaintiff make
“a good-faith effort to effectuate notice [to the defendant] of
commencement of the action” was met where the defendant had actual
notice of the action and was not prejudiced by the plaintiff’s failure to
comply with the requirements of the Rules of Civil Procedure. Id. at 674.
The McCreesh Court expressly rejected the other line of cases from the
Commonwealth and Superior Courts that required strict compliance with the
Rules of Civil Procedure in order to find that the plaintiff made a good faith
effort to provide the defendant with notice of the suit. Id. My review of
Cahill, Schriver and Ferrara reveals that they fall within the latter,
rejected line of cases. See Cahill, 643 A.2d at 123 (“At a minimum, the
good faith requirement in Lamp mandates compliance with the Pennsylvania
Rules of Civil Procedure and, importantly, local practice”) (emphasis
supplied); Schriver, 638 A.2d at 226 (same); Ferrara, 636 A.2d at 1152
(finding that the failure of the plaintiff to “take any affirmative action to see
that the writ was served,” and instead relying upon local practice in his
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226-27; Ferrara, 636 A.2d at 1153. Furthermore, the basis for my
disagreement with the Majority is not that Appellants provided notice of the
filing of the complaint to Attorney McCarroll in his role as attorney for Penn
National, but that Appellants provided notice to Attorney McCarroll based
upon Attorney Whitworth’s mistaken, but reasonable, belief that Attorney
McCarroll was the attorney for Appellees at that time. In my view, this
constituted a good faith effort by Appellants to provide notification of the
filing of the complaint. As such, even if these cases held as the Majority
claims, they would be inapposite to the case before us.
Pursuant to my review of the applicable law and the policy
considerations attendant thereto, I would reverse the decision of the trial
court and remand the case for further proceedings. I therefore respectfully
dissent.
county to serve the defendant with notice did not meet Lamp’s “good faith”
requirement). As such, these decisions have questionable precedential value
on the issue before this Court.
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