J-A18038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LISA WILKINSON N/K/A MILLER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
G. BASS COMPANY,
Appellee No. 1910 MDA 2015
Appeal from the Order Entered October 5, 2015
In the Court of Common Pleas of Berks County
Civil Division at No(s): 13-498
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2016
Lisa Wilkinson, n/k/a Miller, (“Appellant”), appeals from the order
entered in the Court of Common Pleas of Berks County granting G. Bass
Company’s (“Appellee”) motion for summary judgment and dismissing
Appellee’s complaint sounding in negligence. For the following reasons, we
affirm.
The lower court provides an apt factual and procedural history as
follows:
This case stems from a personal injury claim of an alleged trip
and fall accident. On February 4, 2011, [Appellant] was walking
to her residence while an oil delivery truck belonging to
[Appellee] was operating in the area. Appellant alleges that in
the course of walking to her residence, she had to step over the
oil delivery hose belonging to Appellee. Appellant alleges that
while stepping over the oil delivery hose Appellee’s agent caused
the hose to be moved or pulled in such a manner that the hose
made contact with Appellant’s feet and legs which resulted in
*Former Justice specially assigned to the Superior Court.
J-A18038-16
Appellant’s fall and subsequent injuries which are the substance
of the instant manner.
Appellant was in communication with Appellee’s insurance
company within approximately one month of the accident by way
of telephone. A praecipe to issue a writ of summons was filed on
January 14, 2013. Attempts at service were made by the
Sheriff’s Department on January 16, twice, and on January 24,
2013. A return of no service made was filed on January 28,
2013.
Over a year later on February 24, 2014, the writ was reissued
and Appellee was successfully served on March 10, 2014.
Appellant filed the Complaint on June 16, 2014. Appellee filed
the Answer to the Complaint with New Matter on September 28,
2014. Appellee subsequently filed a motion for summary
judgment on July 16, 2015. [The lower court] held oral
argument on Appellee’s Motion for Summary Judgment and on
October 5, 2015, issued an order granting Appellee’s Motion and
dismissing Appellant’s Complaint with prejudice, which order is
now the subject of the instant appeal.
Lower Court Opinion, filed January 28, 2016, at 1-2.
In this timely filed appeal, Appellant presents the following questions
for our consideration:
1. Where a plaintiff has filed suit and delivered process for
service and thereby tolled the statute of limitations; and
where service has been attempted prior to the statute of
limitations, where the defendant’s representatives had an
opportunity to take plaintiff’s statements and were given
medical records prior to commencement of the case, where
no prejudice has been alleged, and where defendant was
ultimately served at the address where service was attempted
before, may a plaintiff be deprived of her right to trial due
solely to a lapse of time between attempts at re-serving the
writ?
2. Where defendant claims that the mode of service or the writ
was invalid, do the Rules state that it should be raised as a
Preliminary Objection, and does failure to do so waive such
objection?
-2-
J-A18038-16
Appellant’s brief at 3.
With regard to appellate review of a summary judgment, Pennsylvania
law makes clear:
[W]e are not bound by the trial court's conclusions of law, but
may reach our own conclusions. In reviewing a grant of
summary judgment, the appellate court may disturb the trial
court's order only upon an error of law or an abuse of discretion.
The scope of review is plenary and the appellate court applies
the same standard for summary judgment as the trial court.
McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 941 (Pa.Super.
1998), appeal denied, 743 A.2d 921 (Pa. 1999). See also Moses v.
T.N.T. Red Star Exp., 725 A.2d 792 (Pa.Super. 1999), appeal denied, 739
A.2d 1058 (Pa. 1999).
“Judicial discretion requires action in conformity with law on facts and
circumstances before the trial court after hearing and consideration.
Consequently, the court abuses its discretion if, in resolving the issue for
decision, it misapplies the law or exercises its discretion in a manner lacking
reason.” Devine v. Hutt, 863 A.2d 1160, 1166–67 (Pa.Super. 2004)
(quoting Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super.
2000) (internal citations omitted). “Summary judgment is proper if an
action is barred by the applicable statute of limitations.” Id. (citing Tohan
v. Owens-Corning Fiberglas Corp., 696 A.2d 1195 (Pa.Super. 1997),
appeal denied, 718 A.2d 786 (Pa. 1998); Brooks v. Sagovia, 431
Pa.Super. 508, 636 A.2d 1201 (Pa.Super. 1994)).
-3-
J-A18038-16
Appellant first contends the court erred in ruling that she effectively
failed to toll the statute of limitations when she received a return of “no
service” from the sheriff and then allowed 13 months to pass after the
expiration of the limitations period before having the writ reissued and
serving Appellee. Her initial attempts1 to serve Appellee within the
limitations period and at the business address where service was eventually
made demonstrated good-faith attempts to notify Appellee of the
commencement of litigation, Appellant maintains. Decisional law of this
Commonwealth does not support her position.
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.” McCreesh v. City of Philadelphia,
888 A.2d 664, 671 (Pa. 2005) (citation omitted). The Rules of Civil
Procedure 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
2
Pa.R.C.P. 1007. The language of Pa.R.C.P. 401, moreover, prescribes that
____________________________________________
1
The record reflects that two attempts at service were made on January 16,
2013 (Sheriff indicating “no answer” at 2:25 p.m. and “Resident . . . said he
didn’t know the business), and one more attempt was made on January 24,
2013 (Sheriff indicating “no answer” at 6:24 p.m., left card). No Service
Return, filed 2/1/13; C.R. #3.
2
Rule 401. Time for Service. Reissuance, Reinstatement and
Substitution of Original Process. Copies for Service, provides:
(Footnote Continued Next Page)
-4-
J-A18038-16
_______________________
(Footnote Continued)
(a) Original process shall be served within the Commonwealth
within thirty days after the issuance of the writ or the filing of
the complaint.
******
(b)(1) If service within the Commonwealth is not made within
the time prescribed by subdivision (a) of this rule ..., the
prothonotary upon praecipe and upon presentation of the
original process, shall continue its validity by reissuing the writ
or reinstating the complaint, by writing thereon “reissued” in the
case of a writ or “reinstated” in the case of a complaint.
(2) A writ may be reissued or a complaint reinstated at any time
and any number of times. A new party defendant may be
named in a reissued writ or a reinstated complaint.
(3) A substituted writ may be issued or a substituted complaint
filed upon praecipe stating that the former writ or complaint has
been lost or destroyed.
(4) A reissued, reinstated or substituted writ or complaint shall
be served within the applicable time prescribed by subdivision
(a) of this rule ... after reissuance, reinstatement or substitution.
(5) If an action is commenced by writ of summons and a
complaint is thereafter filed, the plaintiff instead of reissuing the
writ may treat the complaint as alternative original process and
as the equivalent for all purposes of a reissued writ, reissued as
of the date of the filing of the complaint. Thereafter the writ
may be reissued, or the complaint may be reinstated as the
equivalent of a reissuance of the writ, and the plaintiff may use
either the reissued writ or the reinstated complaint as alternative
original process.
Note: If the applicable time has passed after the issuance of the
writ or the filing of the complaint, the writ must be reissued or
the complaint reinstated to be effective as process. Filing or
reinstatement or substitution of a complaint which is used as
alternative process under this subdivision, has been held
(Footnote Continued Next Page)
-5-
J-A18038-16
service shall be made within 30 days after issuance of the writ or complaint,
but it also allows a prothonotary to preserve the validity of the original
process by reissuing the writ or reinstating the complaint at any time and
any number of times.
In Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), our Supreme Court
addressed what it perceived as endemic abuses of process by plaintiffs who
tolled the statute of limitations by filing a writ of summons, had the writ
repeatedly reissued, and consciously failed to notify defendants of the suit.
Though technically compliant with the Rules of Civil Procedure, this process
nonetheless undermined the purpose of the statute of limitations, which is to
protect defendants from stale claims. The Court, therefore, 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. at 889. In Farinacci v.
Beaver County Industrial Development Authority, 511 A.2d 757 (Pa.
1986), the Supreme Court subtly modified the wording in Lamp wherein it
held that “Lamp requires of plaintiffs a good-faith effort to effectuate notice
_______________________
(Footnote Continued)
effective in tolling the statute of limitations as the reissuance or
substitution of a writ.
Pa.R.C.P. 401.
-6-
J-A18038-16
of commencement of the action.” Id. at 759. These two statements came
to be known as the Lamp–Farinacci rule.
After the intermediate appellate courts offered discordant
interpretations of what constitutes a good-faith effort under the Lamp-
Farinacci rule—compare, e.g., Teamann v. Zafris, 811 A.2d 52, 63
(Pa.Cmwlth. 2002) (requiring strict compliance with the Rules of Civil
Procedure related to service of process and local practice in order to satisfy
good faith requirement) with Leidich v. Franklin, 575 A.2d 914 (Pa.Super.
1990) (adopting more flexible approach of excusing plaintiffs' initial
procedurally defective service where the defendant has actual notice of the
commencement of litigation and is not otherwise prejudiced)—our Supreme
Court clarified what constitutes a plaintiff’s good faith effort to notify a
defendant of the commencement of an action. In McCreesh, the plaintiff
had filed a praecipe for a writ of summons within the applicable two-year
statute of limitations. Id. at 665. He delivered 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, however, as the
rules required 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, the plaintiff
-7-
J-A18038-16
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. The plaintiff maintained that the
original writ was served in compliance with the rules, arguing that delivery of
the writ by a postal worker constituted service by a competent adult.
The Court held that plaintiff satisfied his obligation to make good-faith
effort to give notice of commencement of action when defendants received
actual notice of the commencement of litigation and are not otherwise
prejudiced, abrogating that line of cases requiring strict compliance with the
rules of civil procedure:
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 Rule 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.
McCreesh, 888 A.2d at 674 (emphasis added).
In Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122
(Pa.Super. 2007), a panel of this Court identified an absence of good faith
-8-
J-A18038-16
effort where plaintiffs’ counsel allowed six months to pass—taking the case
beyond the statute of limitations period—before ascertaining that Sheriff’s
service had not been effected. The trial court had dismissed the case under
Lamp, we affirmed, and our Supreme Court remanded for reconsideration
under McCreesh. On remand, we again affirmed the trial court's order
granting summary judgment in favor of defendant. As in the case sub
judice, the plaintiffs brought their action against the defendant corporation
within the statute of limitations, but the Sheriff unsuccessfully attempted
service at the defendant’s purported business address and sent plaintiffs'
counsel a return indicating no service was made. Plaintiffs' counsel,
however, had recently moved his law office and experienced failed mail
deliveries. The lawyer never checked to ascertain that service was made
and instead waited for the sheriff's return.
Six months later, plaintiffs received an inquiry from the defendant’s
insurance carrier as to whether they intended to “make a claim” for their
injuries, as the statute of limitations would run in two weeks and preclude
them from making a claim. Counsel, meanwhile, obtained a copy of the
Sheriff’s return that same month and filed a praecipe to reissue the writ six
days after the statute of limitations expired. Service was effected soon
afterward.
We observed, “It is not necessary that the plaintiff's conduct be such
that it constitutes some bad faith act or overt attempt to delay before the
rule of Lamp will apply.” Id. at 124. Rather, “neglect and mistake to fulfill
-9-
J-A18038-16
the responsibility to see that requirements for service are carried out may be
sufficient to bring the rule in Lamp to bear.” Id. Therefore, unintentional
conduct can constitute a lack of good faith. Id. at 124–25. We, therefore,
discerned in Englert a lack of good faith efforts to serve process therein.
Our decision rested on the lawyer's failure to determine if service was made
when there were problems with mail delivery to the law office. We stated
that the lawyer's “inaction demonstrated an intent to stall the judicial
machinery which was put into motion by the filing of the initial writ and
simply cannot be excused.” Id. at 127.
Here, the case against a good faith effort is even stronger than in
Englert, for Appellant received the “no service” return from the Sherriff and
still allowed 13 months—all after the limitations period had run—to transpire
before she sought reissuance of the writ and successfully served it upon
Appellee. As in Englert, we find that such knowing inaction demonstrates
an inexcusable intent to stall the judicial machinery and, accordingly,
precludes finding Appellant made a good faith effort consistent with
Supreme Court precedent.
We next address Appellant’s contention that Appellee waived its
statute of limitations-based challenge by raising it in a New Matter rather
than in Preliminary Objections. Pennsylvania Rule of Civil Procedure 1030
provides, with exceptions inapplicable to this case, as follows:
[A]ll affirmative defenses including but not limited to the
defenses of accord and satisfaction, arbitration and award,
consent, discharge in bankruptcy, duress, estoppel, failure of
- 10 -
J-A18038-16
consideration, fair comment, fraud, illegality, immunity from
suit, impossibility of performance, justification, laches, license,
payment, privilege, release, res judicata, statute of frauds,
statute of limitations, truth and waiver shall be pleaded in a
responsive pleading under the heading “New Matter[.”]
Pa.R.C.P. 1030 (emphasis added). Under our rules, therefore, a plaintiff
raising the affirmative defense of statute of limitations must do so in an
Answer and New Matter.
Notwithstanding this procedural mandate, Appellant cites succinctly to
decisional law as standing for the proposition that “where a defendant files
an answer to the complaint objections to validity of the service ultimately
effected are waived.” Appellant’s brief at 8, citing Cinque v. Asare, 585
A.2d 490, 492 (Pa.Super. 1990). We disagree.3
In qualifying the rules pertaining to the tolling of the statute of
limitations, Lamp held that failure to promptly notify defendants results in
nullification of the commencement of the action. Id. at 889; see also
Moses, 725 A.2d at 797 (finding absence of a good-faith effort to serve
defendant nullifies both the commencement of the action and the tolling of
the statute of limitations). Therefore, to toll the statute of limitations, a
plaintiff must ultimately make a good-faith effort to serve the complaint in a
____________________________________________
3
We distinguish Cinque on its facts, where the plaintiff in that case filed a
timely complaint, the defendants—having received actual notice—filed an
answer, and the parties engaged in two years of discovery before defendants
alleged defective service. We rejected defendant’s arguments and held that
they had waived any “defective service” or statute of limitations arguments
by answering the complaint and subsequently engaging in two years of
litigation prior to the challenge. Id. at 491.
- 11 -
J-A18038-16
timely manner. Devine, 863 A.2d at 1167–68. See also Ramsay v.
Pierre, 822 A.2d 85, 90 (Pa.Super. 2003) (recognizing filing complaint tolls
statute of limitations, provided that plaintiff attempts to effect [timely]
service).
In Devine, we addressed the appropriate filing by which to challenge
the failure to toll the statute of limitations with a good-faith service of
process:
The existence of a statute of limitation which cuts off a remedy
does not constitute a defect in the “form of service.”
Farinacci [ ] (emphasis added). Thus, an affirmative defense of
a statute of limitations is not properly raised in preliminary
objections; it is properly raised in new matter. Id.; Pa.R.C.P.
1028; 1030. Additionally, 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. Reuben v. O'Brien, 299 Pa.Super. 372, 445 A.2d
801 (1982). When a defendant raises a waivable statute of
limitations via preliminary objections, the proper challenge is to
file preliminary objections to strike the defendant's preliminary
objections for failure of a pleading to conform to law or rule of
court. Farinacci[ ]; Pa.R.C.P. 1028(a)(2).
Whether the statute of limitations has run on a claim is generally
a question of law for the trial judge. Id. The filing of a praecipe
for a writ of summons [or a complaint] to commence an action is
sufficient to toll the running of the statute of limitations, if the
plaintiff makes a good faith effort to serve the writ or complaint
in compliance with the other applicable rules of court. Lamp,
supra. When a plaintiff successfully tolls the applicable statute
of limitations on an action by timely issuance and delivery of a
[complaint] for service, the action is kept alive for a period
equal to the original statute of limitations. Shackelford v.
Chester County Hosp., 456 Pa.Super. 356, 690 A.2d 732
(1997) (citing Beck v. Minestrella, 264 Pa.Super. 609, 401
A.2d 762 (1979) (stating issuance and delivery of writ for
- 12 -
J-A18038-16
service keeps action alive for period equal to original period as
measured from the filing date of writ)).
Devine at 1167–68 (emphasis in original). See also Daniel v. City of
Philadelphia, 86 A.3d 955, 956-58 (Pa.Cmwlth 2014) (holding statute of
limitations defense properly raised in New Matter rather than preliminary
objections where lack of good faith effort to serve complaint after statute of
limitations had run).4
Under this precedent, Appellant failed to toll the statute of limitations
with her timely commencement of litigation because she failed to make a
good faith effort to notify Appellee of the suit long after the limitations
period had expired. We, therefore, find Appellee appropriately raised a
limitations-based affirmative defense in its New Matter, and we affirm the
order granting Appellee’s motion for summary judgment.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2016
____________________________________________
4
Though not binding upon this Court, the decision of the Commonwealth
Court is instructive on the present issue.
- 13 -
Wilkinson, L. v. G. Bass Co.
Combined Opinion