J-S27036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHELLE GORBY, TIFFANY BEAVER : IN THE SUPERIOR COURT OF
AND TENNIEAL NORMAN : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1646 WDA 2018
ROBERT HOPKINS :
Appeal from the Order Entered October 18, 2018
In the Court of Common Pleas of Washington County Civil Division at
No(s): No. 2017-2433
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED JUNE 7, 2019
This matter is an appeal filed by plaintiffs Michelle Gorby, Tiffany Beaver,
and Tennieal Norman (collectively, Plaintiffs) from an order of the Court of
Common Pleas of Washington County (trial court) granting summary
judgment in favor of the defendant, Robert Hopkins (Defendant), on the
ground that the action was barred by the statute of limitations. For the
reasons set forth below, we affirm.
This personal injury action arose out of a motor vehicle accident that
occurred on Interstate 79 in South Strabane Township, Pennsylvania on May
12, 2015, when Defendant’s car entered the northbound lanes of the
Interstate from the median emergency vehicle turnaround and a car driven
by plaintiff Gorby collided with the rear of Defendant’s car. Plaintiffs Beaver
and Norman were passengers in plaintiff Gorby’s car. Following the accident,
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* Retired Senior Judge assigned to the Superior Court.
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Plaintiffs, who are West Virginia residents, retained a West Virginia attorney
who negotiated with Defendant’s insurer concerning their claims for damages
from the accident. Plaintiffs did not reach a settlement with Defendant’s
insurer before the two-year statute of limitations1 expired.
On May 12, 2017, the last day within the statute of limitations, Plaintiffs
commenced this action pro se by filing a praecipe for writ of summons, and a
writ of summons was issued that day. Plaintiffs, however, did not deliver the
writ of summons to the sheriff for service and made no attempt to serve
Defendant with the writ or to give Defendant any notice of the writ of
summons before August 2017. Plaintiffs’ Responses to Requests for
Admissions Nos. 2-4. On August 2, 2017, Plaintiffs, represented by
Pennsylvania counsel, filed a praecipe to reissue the writ of summons, and on
August 14, 2017, over three months after the statute of limitations expired,
the sheriff served the writ of summons on Defendant.
On January 18, 2018, Plaintiffs filed their complaint in this action
alleging that Defendant was negligent and seeking damages for injuries that
they claim that they suffered in the accident. In his answer and new matter,
Defendant pled the defense of the statute of limitations. On April 2, 2018,
Defendant moved for summary judgment on the ground that the writ of
summons was ineffective to timely commence the action because Plaintiffs
made no good faith attempt to serve it and that the action was therefore
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1 42 Pa.C.S. § 5524(2).
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barred by the statute of limitations. The trial court granted Plaintiffs
extensions of time to take discovery on the issues raised by the summary
judgment motion, and, before they were required to respond to the motion,
Plaintiffs obtained documents from Defendant’s insurer’s file and took the
depositions of Defendant, Defendant’s wife, and the insurance adjuster who
had negotiated with Plaintiffs’ West Virginia counsel.
On October 18, 2018, the trial court entered an opinion and order
granting Defendant’s motion for summary judgment. The trial court
concluded that the evidence was undisputed that Plaintiffs made no effort to
serve the writ of summons after it was issued on May 12, 2017 and that there
was no evidence that Defendant or his insurer agreed or represented to
Plaintiffs that Plaintiffs did not need to serve the writ. Trial Court Opinion at
2, 4-5, 8-9. The trial court held that under Lamp v. Heyman, 366 A.2d 882
(Pa. 1976), and its progeny, including McCreesh v. City of Philadelphia,
888 A.2d 664 (Pa. 2005), the writ of summons was therefore ineffective to
commence the action before the statute of limitations expired. Id. at 5-9.
This timely appeal followed.2 Our standard of review of the trial court’s grant
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2 Although the trial court’s order did not address a cross-claim that Defendant
pled in his answer and new matter against plaintiff Gorby, this appeal is
properly before this Court. The only claims asserted in the cross-claim were
that plaintiff Gorby was responsible for the injuries to plaintiffs Beaver and
Norman and was liable to Defendant for contribution. The cross-claim thus
was contingent on the viability of Plaintiffs’ claims in this action and sought no
recovery on Defendant’s behalf unless Defendant was held liable to plaintiff
Beaver or plaintiff Norman. Because the summary judgment order dismissed
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of summary judgment is de novo and the scope of review is plenary. Pyeritz
v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011).
Plaintiffs present the following issues for our review:
1. Did the trial court err in concluding that the Plaintiffs did not
comply with the standards set forth in McCreesh v. City of
Philadelphia, 888 A.2d 664 (Pa. 2005) in concluding that the
“judicial machinery was knowingly delayed” and that the
Defendant was prejudiced by the [sic] “the lack of any attempt to
serve the writ of summons”?
2. Did the trial court err as a matter of law in failing to find that
the Defendant (and his insurer) had actual notice of the
commencement of litigation against him by the Plaintiffs?
Appellants’ Br. at 4. Although Plaintiffs state these as two issues, they are
more properly analyzed as arguments with respect to a single issue: whether
the trial court correctly held, under the undisputed facts before it, that
Plaintiffs’ May 12, 2017 praecipe for writ of summons was ineffective to timely
commence their action. Indeed, Plaintiffs discuss both questions in a single,
combined argument section of their brief. Appellants’ Br. at 12-23. We,
accordingly, address Plaintiffs’ issues as part of our consideration of the single
issue before us, whether the trial court correctly held that the praecipe for writ
of summons was ineffective.
An action may be commenced by filing a praecipe for a writ of summons.
Pa.R.C.P. 1007(1). Ordinarily, therefore, it is the date that the plaintiff files
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Plaintiffs’ complaint with prejudice, it made the cross-claim moot and
therefore disposed of all claims and all parties. Oliver v. Ball, 136 A.3d 162,
166 n.2 (Pa. Super. 2016).
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the praecipe for the writ of summons that determines whether the action is
time-barred, not the date when the defendant is served with the writ.
McCreesh, 888 A.2d at 671; Lamp, 366 A.2d at 886. Our Supreme Court,
however, established an exception to that rule in Lamp. Under Lamp and
subsequent Supreme Court decisions applying Lamp, a praecipe for a writ of
summons is ineffective to commence the action and the action is time-barred
if the plaintiff makes no good faith effort to serve the defendant or provide
the writ of summons to the defendant within thirty days or, alternatively, if
the plaintiff’s delay in properly serving the defendant causes prejudice.
McCreesh, 888 A.2d at 672-74; Farinacci v. Beaver County Industrial
Development Authority, 511 A.2d 757, 759-60 (Pa. 1986); Lamp, 366 A.2d
at 888-89.
In Lamp, the Supreme Court concluded 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.” 366 A.2d at 888. The Supreme Court
accordingly 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. The Court explained that the purpose of this ruling 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
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in excess of that permitted by the statute of limitations.” Id. The Court
further held that in determining whether the plaintiff’s conduct stalled the
judicial machinery, unless local rule provides that the prothonotary delivers
the writ of summons to the sheriff, “the plaintiff shall be responsible for
prompt delivery of the writ to the sheriff for service.” Id.
In Farinacci and McCreesh, the Supreme Court refined the tests and
factors that the courts are to consider in determining whether a praecipe for
a writ of summons is ineffective under Lamp. In Farinacci, the Court held
that under Lamp, the plaintiff must make a good faith effort to give notice of
the commencement of the action to the defendant within thirty days. 511
A.2d at 759. Counsel for the plaintiffs in that case failed to deliver the writ of
summons to the sheriff for service within thirty days because he forgot to do
so and served the defendants approximately a month and one-half after the
statute of limitations expired. Id. at 758-59. The Court ruled that the
plaintiffs did not make a good faith effort to give the defendants notice of the
action and that the action was therefore barred by the statute of limitations,
even though the defendants were aware of the plaintiffs’ claim before the
praecipe for a writ of summons was filed. Id. at 759-60.
In McCreesh, the Court addressed and clarified what constitutes a good
faith effort by the plaintiff to give notice of the action to the defendant under
Lamp and Farinacci. In McCreesh, the plaintiff sent the writ of summons
to the defendant on the day that it was issued by certified mail, and the
defendant received the writ of summons the next day, before the statute of
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limitations expired. 888 A.2d at 666. The plaintiff, however, did not serve
the defendant in accordance with the Rules of Civil Procedure until several
months later, after the statute of limitations expired. Id. at 666-67. The
Court held that failure to attempt to serve the writ in accordance with the
Rules of Civil Procedure did not preclude a finding of good faith effort where
the plaintiff had promptly supplied actual notice of the action by sending the
writ to the defendant. Id. at 674. The Court, accordingly, ruled that where
the plaintiff has timely provided the writ to the defendant, delay in properly
serving the writ bars the action only where that delay prejudiced the
defendant. Id.
The trial court here correctly held that Plaintiffs made no good faith
effort to serve the writ or give notice of the action after the writ of summons
was issued on May 12, 2017 and that this action was therefore barred by the
statute of limitations. It was Plaintiffs’ burden to demonstrate that they made
a good faith effort to serve Defendant or provide him with a copy of the writ.
Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122, 125 (Pa. Super.
2007). They did not submit any evidence that could satisfy that burden.
Instead, the evidence was undisputed that Plaintiffs made no effort
whatsoever to timely serve Defendant or provide a copy of the writ of
summons to Defendant or his insurer.
Plaintiffs admitted that they not deliver the writ to the sheriff before
August 2017 and that they did not make any attempt to serve Defendant with
the writ or notify him of the writ before August 2017. Plaintiffs’ Responses
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Requests for Admissions Nos. 2-4. Plaintiffs submitted no affidavit of their
West Virginia counsel or any other evidence that anyone else attempted to
serve the writ before August 2017 or provided a copy of the writ of summons
to Defendant or his insurer. Indeed, Plaintiffs admit in their brief that there
was no attempt to serve Defendant until August 2017. Appellants’ Br. at 5,
10, 20. This absence of any attempt to serve or provide a copy of the writ to
Defendant establishes lack of good faith effort to give notice of the action as
a matter of law. Farinacci, 511 A.2d at 759-60; Moses v. T.N.T. Red Star
Express, 725 A.2d 792, 796-97 (Pa. Super. 1999).
Plaintiffs do not contend that any disputed issues of fact existed
concerning their lack of effort to serve Defendant or provide a copy of the writ
of summons to him. Instead, they argue that McCreesh does not permit
dismissal of an action for lack of effort to provide the writ to the defendant
unless prejudice is shown and that the action should not be barred because
Defendant and his insurer allegedly had actual notice of the suit in May 2017.
Neither of these arguments has merit.
Contrary to Plaintiffs’ contentions, McCreesh did not eliminate the
requirement that the plaintiff make a good faith effort to provide the writ of
summons to the defendant or require any showing of prejudice where no such
effort is made. The Supreme Court made clear in McCreesh that it was
interpreting “what constitutes a good faith effort by a plaintiff to effectuate
notice to a defendant of the commencement of an action,” not removing that
requirement. 888 A.2d at 665. Although the Court stated in McCreesh that
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claims should be dismissed only “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. at 674, the Court did
not hold that complete failure to attempt to provide the writ to the defendant
does not constitute an intent to stall the judicial machinery. Rather, the Court
held only that lack of compliance with the technical requirements for service
of process does not constitute an intent to stall the judicial machinery where
the plaintiff has in fact supplied the defendant with actual notice of the action
by promptly sending the writ of summons to the defendant. Id. Accordingly,
it remains the law that inaction by the plaintiff constitutes an “intent to stall
the judicial machinery” that warrants dismissal where the plaintiff makes no
good faith effort to timely serve the defendant and does not timely provide
the writ of summons to the defendant. Englert, 932 A.2d at 125-28.
Plaintiffs’ other argument, that Defendant had actual notice of this
action, is contrary to the record before the trial court. The “actual notice” to
which the Supreme Court referred in McCreesh is the defendant’s receipt of
copy of the writ or complaint commencing the action, not mere notice of the
possibility of litigation or notice that an action is going to be filed or has likely
been filed. McCreesh, 888 A.2d at 669, 672 n.17, 674; Englert, 932 A.2d
at 127. Plaintiffs here showed only that Defendant’s insurer was in settlement
negotiations with their West Virginia counsel concerning their claims before
the statute of limitations expired, that their West Virginia counsel told
Defendant’s insurer on May 9, 2017 that he was going to file a writ of
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summons, that the insurer told Defendant on May 12, 2017 that a writ or
complaint might be served, and that the settlement negotiations did not
terminate until January 2018. Richardson Dep. at 12-16, 26-27, 33-38, 40-
43, 49-50, 52-53; Erie Insurance File Printout at 21, 24; Erie Insurance Letter
to Defendant, 5/12/17. Those facts do not show that Defendant or his insurer
knew in May or June 2017 that this action had in fact been filed, let alone
show that Defendant or his insurer received a copy of the writ of summons
before it was belatedly served in August 2017. To the contrary, the insurance
adjuster testified that he did not receive any copy of the writ until it was served
on Defendant and that he did not know before service of the writ that the
action had been filed. Richardson Dep. at 52.
Because the undisputed evidence established that Plaintiffs made no
good faith effort to give Defendant timely notice of this action after it was
filed, the trial court correctly ruled that Plaintiffs’ May 12, 2017 praecipe for a
writ of summons was ineffective to commence this action and that this action
was barred by the statute of limitations. We therefore affirm the trial court’s
grant of summary judgment in Defendant’s favor.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2019
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