People, Property Owners & Citizens of the Pleasant Valley School District v. Burney

KELLEY, Judge,

dissenting.

I must respectfully dissent. The majority concludes that the trial court erred in entering judgment of non pros for *130appellees because Vianello, the plaintiff below, had timely reinstated the complaint and because a period equal to the limitations period for the underlying action had not passed.

In Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), our Supreme Court reaffirmed that the filing of a complaint within the applicable limitations period serves to toll the statute of limitations. Where service is not effected within thirty days after the filing of the complaint, a plaintiff may reinstate the complaint at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations for the commencement of the action. Furthermore, each valid reissuance gives rise to a new equivalent period during which the complaint may again be reinstated.

The Supreme Court recognized, however, 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 477, 366 A.2d at 888. Accordingly, the court in Lamp issued the prospective rule that henceforth, “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 478, 366 A2d at 889.

The Superior Court has applied Lamp to require a good faith effort on the part of the plaintiff to effect service. In Jacob v. New Kensington Y.M.C.A., 312 Pa.Superior Ct. 533, 459 A.2d 350 (1983), the majority found that Lamp must be applied on a case-by-case basis in order to determine whether plaintiff has made a good faith effort to effectuate service. Id. at 538, 459 A.2d at 354. More recently, the Superior Court has construed Lamp as placing the burden on the plaintiff to show a good faith effort in attempting service. Feher by Feher v. Altman, 357 Pa.Superior Ct. 50, 515 A.2d 317 (1986).

I believe that the facts of this case must also be examined in order to determine whether the trial court abused its discretion in entering the non pros. This is not a case where the *131service could not be effected because defendants could not be found. Nor has Vianello offered any reasonable excuse for his failure to serve appellees. Rather, it appears that Vianello initiated this action, then sought publicity through the local media based on the pending suit, rather than attempting to serve appellees with the complaint.

Based on these facts, I would conclude, as did the trial judge, that no good faith effort to effect service was made, and affirm the trial court’s entry of a judgment of non pros.